title-71•Title 71 W. Va. C.S.R.
Office of the Inspector General Office of the Inspector General
Series 01 Rules Regarding Discrimination Against Individuals with Disabilities
W. Va. Code R. § 71-1-1 General
1.1. Scope. -- The following legislative regulations of the West Virginia Human Rights Act set forth rules for complying with the disability provisions of the West Virginia Human Rights Act, W. Va. Code §§16B-17-1, et seq., and are intended to interpret and implement the provisions of the West Virginia Human Rights Act, particularly the 1989 amendments relating to handicap disability discrimination, and to assist all persons in understanding their rights, obligations, and duties under the law.
In these regulations, the word handicap and its derivations are replaced by the word disability and its derivations in order to conform with the Americans with Disabilities Act of 1990, 42 U.S.C. §§12101, et seq., even though the provisions of the West Virginia Human Rights Act, W. Va. Code §§16B-17-1, et seq. uses the term handicap.
1.2. Authority. -- W. Va. Code §16B-17-8(h) and §16B-18-20.
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-1-2 Definitions
2.1. "Disability" means, with respect to an individual--:
2.1.1. A mental or physical impairment which substantially limits one or more of a person's major life activities; or
2.1.2. A record of such impairment; or
2.1.3. Perception of such an impairment.
2.1.4. This term does not include persons whose current use of or addiction to alcohol or drugs prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol or drug abuse, would constitute a direct threat (as defined in section 4.8.) to property or the safety of others.
2.2. "Physical Impairment" means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory; speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine.
2.3. "Mental Impairment" means any mental or physiological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term mental impairment shall not include:
2.3.1. Transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
2.3.2. Compulsive gambling, kleptomania, or pyromania;
2.3.3. Psychoactive substance use disorders resulting from current illegal use of drugs.
2.4. "Physical or Mental Impairment" includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, and emotional illness.
2.5. "Substantially Limits" means:
2.5.1. The inability to perform a major life activity that the average person in the general population can perform;
2.5.2. A significant restriction as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major activity; but
2.5.3. Substantially limits does not include or mean minor temporary ailments or injuries. Examples of minor temporary ailments are colds or flu, or sprains or minor injuries.
2.6. "Major Life Activities" means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, transportation, and adapting to housing.
2.7. "Has a Record of Such Impairment" means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
2.8. "Is Regarded as Having an Impairment" means any of the following:
2.8.1. Has a physical or mental impairment that does not substantially limit major life activities but is treated by another as having such a limitation;
2.8.2. Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
2.8.3. Has none of the impairments defined above but is treated by another as having such an impairment.
W. Va. Code R. § 71-1-3 Verification of Disability
3.1. If, at the time of public hearing, there is a question or dispute as to whether the complainant is an individual with a disability, or as to the nature of the impairment, the burden of proof shall be upon the complainant to present by reasonable medical opinions or records:
3.1.1. The nature of the disability;
3.1.2. Any limitations caused by said disability; and
3.1.3. Any restrictions upon the disabled individuals' work activity. If the complainant prevails, the costs of obtaining and presenting such medical evidence may be assessed against the respondent.
3.2. It is intended that medical evidence will be required only in cases where there is an actual dispute as to the nature or medical implications of the disability.
W. Va. Code R. § 71-1-4 Employment Discrimination Prohibited
4.1. No employer shall, on the basis of disability, subject any qualified individual with a disability to discrimination in employment as it relates to:
4.1.1. Recruitment, advertising, and processing applications;
4.1.2. Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff, and rehiring;
4.1.3. Rates of pay or any other form of compensation or changes in compensation;
4.1.4. Job assignments, job classifications, organizational structures, position description, lines of progression, and seniority lists;
4.1.5. Leaves of absence, sick leave, or any other leave;
4.1.6. Fringe benefits, such as medical, hospital, accident, disability, life insurance, retirement benefits, unemployment benefits, and profit sharing and bonus plan, whether or not administered by the recipient;
4.1.7. Selection and/or financial support for training, including apprenticeship, professional meetings, conferences, and other related activities and leaves of absence to pursue training;
4.1.8. Employer-sponsored activities, including social or recreational programs;
4.1.9. Any other terms, conditions, or privileges of employment.
4.2. "Qualified Individual with a Disability" means an individual who is able and competent, with reasonable accommodation, to perform the essential functions of the job, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description may be considered evidence of the essential functions of the job. A job function may be considered essential for several reasons, including but not limited to the following:
4.2.1. The function may be essential because the reason the employment position exists is to perform that function;
4.2.2. The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
4.2.3. The function may be essential because of the amount of time spent on the job performing the function.
4.3. "Able and Competent" means that, with or without reasonable accommodation, an individual is currently capable of performing the work and can do the work without posing a direct threat (as defined in section 4.8.) of injury to the health and safety of either other employees or the public.
4.4. "Reasonable Accommodation" means reasonable modifications or adjustments to be determined on a case-by-case basis which are designed as attempts to enable an individual with a disability to be hired or to remain in the position for which he was hired. Reasonable accommodation requires that an employer make reasonable modifications or adjustments designed as attempts to enable an individual with a disability to remain in the position for which she/he was hired.
4.5. An employer shall make reasonable accommodation to the known physical or mental impairments of qualified individuals with disabilities where necessary to enable a qualified individual with a disability to perform the essential functions of the job. Reasonable accommodations include, but are not limited to:
4.5.1. Making faculties used by individuals with disabilities, including common areas used by all employees such as hallways, restrooms, cafeterias and lounges, readily accessible to and usable by individuals with disabilities;
4.5.2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position for which the person is able and competent (as defined in section 4.3.) to perform, acquisition or modification of equipment or devices, the provision of readers or interpreters, and similar actions;
4.5.3. Appropriate adjustments or modifications of examinations, training materials or policies; and
4.5.4. The preparation of fellow workers for the individual with a disability, to obtain their understanding of the limitations of the disability and their cooperation in accepting other reasonable accommodations for the individual with a disability.
4.6. An employer shall not be required to make such accommodation if she/he can establish that the accommodation would be unreasonable because it imposes undue hardship on the conduct of his/her business. The term undue hardship means an action requiring significant difficulty or expense, when considered in light of the factors set forth in the following:
4.6.1. The overall financial resources of the employer; the overall size of the employer=s operation with respect to the number of its employees; the number, type and location of its facilities;
4.6.2. The nature of the employer's operation, including composition, structure and functions of the employer's workforce; the geographic separateness, administrative or fiscal relationship of the employer=s facility or facilities;
4.6.3. The nature and cost of the accommodations needed (taking into account alternate sources of funding, such as Division of Vocational Rehabilitation); the effect on expenses and resources, or the impact otherwise of such accommodation upon the employers operation;
4.6.4. The possibility that the same accommodations may be able to be used by other prospective employees; and
4.6.5. The requirements of the West Virginia Law on Disabled Persons and Public Use Buildings and Facilities, W. Va. Code §§18-10F-1, et seq. Any changes or alterations required due to the failure of the employer (or his lessee, lessor, or predecessor in title) to conform to the requirements of said statute will be considered per se reasonable.
4.7. Each individual's ability to perform a particular job must be assessed on an individual basis. An employer may refuse to hire or may discharge a qualified individual with a disability if, even after reasonable accommodation, the individual is unable to perform the essential functions of the job without creating a substantial hazard to his/her health and safety or the health and safety of others. However, any such decision shall be used upon the individuals actual abilities, and not upon general assumptions or stereotypes about persons with particular mental or physical disabilities.
4.8. In deciding whether an individual poses a direct threat to health and safety, the employer has the burden of demonstrating that a reasonable probability of a materially enhanced risk of substantial harm to the health or safety of the individual or others cannot be eliminated or reduced by reasonable accommodation. The employers determination that an individual poses a direct threat shall be based on an individualized assessment of the individuals present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgement that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, factors to be considered include:
4.8.1. The duration of the risk;
4.8.2. The nature and severity of the potential harm;
4.8.3. The likelihood that the potential harm will occur; and
4.8.4. The imminence of the potential harm.
4.9. An employer shall not discriminate against an applicant or employee because of a disability or impairment which is not presently job related but which may worsen and become job related in the future; Provided, that this section shall not be construed so as to impose an undue hardship on the employer. In determining whether the requirements of this section impose an undue hardship on the employer, the Commission shall consider:
4.9.1. The length, cost, and nature of training required for the job;
4.9.2. The length of time that is likely to elapse before the condition becomes job related;
4.9.3. The normal turnover for the position;
4.9.4. The factors listed in section 4.6.
4.10. West Virginia Code §16B-17-9 provides an exception to the prohibition of discrimination in employment when such discrimination is based on a bona fide occupational qualification (B.F.O.Q.). The Commission construes the B.F.O.Q. very narrowly and requires that, in order to establish a B.F.O.Q. which excludes all persons with a particular disability, an employer must prove that all or virtually all persons with that particular disability would be unable to perform the essential functions of the job involved.
4.11. The following are examples of actions which do not warrant application of the B.F.O.Q. exception and which constitute unlawful discrimination with respect to disability:
4.11.1. Refusal to select an individual with a disability because of the preference (or assumptions about the preferences) of co-workers, customers, or clients;
4.11.2. Refusal to select an individual with a disability or a position because of uninsurability or increased cost of insurance (whether actual or anticipated).
4.12. The following is an example of a B.F.O.Q. based upon disability which may be permitted:
4.12.1. Physical standards for employment which are directly related to safe performance of the job and are based upon complete factual information concerning working conditions and hazards, and essential physical requirements of each job.
4.13. When an individual acquires a disability in the course of employment, the employer shall, if possible, through reasonable accommodation, continue the individual in the same position, or may reassign the employee to a new position for which she/he is qualified or for which, with training, she/he may become qualified. The requirements of this subsection shall be interpreted in such a way as to be consistent with the W. Va. Code §§23-5A-1, et seq., which prohibits employers from discriminating against employees because they have applied for or received Worker's Compensation benefits.
4.14. An employer shall offer employees with disabilities the same opportunity as nondisabled employees to obtain health and life insurance benefits, and no individuals with disabilities shall, on the basis of disability, be denied health and life insurance benefits provided in connection with employment, unless otherwise authorized by law. It shall not be an unlawful discriminatory practice for an employer to observe the provisions of any bona fide pension, retirement, group or employee insurance, or welfare benefit plan or system not adopted as a subterfuge to evade the provisions of this rule.
4.15. If an applicant is refused employment, or an employee is discriminated against in any term, condition, or privilege of employment, because of a disability, the burden shall be upon the employer to establish that the refusal or discrimination was based upon a bona fide occupational qualification, (as defined in section 4.10.) or that, even with reasonable accommodation, the employee would be unable safely and adequately to perform the essential functions of that job, or that employment of an individual with a disability would impose an undue hardship upon the employer under the circumstances described in section 4.6.
W. Va. Code R. § 71-1-5 Pre-Employment Practices
5.1. An employer, labor organization, or employment agency shall not make pre-employment inquiry of an applicant as to whether the applicant has a physical or mental impairment or as to the nature or severity of such impairment, except that an employer, labor organization, or employment agency may make pre-employment inquires into the ability of a job applicant to perform job-related functions.
5.2. An employer may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination if:
5.2.1. All entering employees are subjected to such an examination regardless of disability;
5.2.2. Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files, and is treated as confidential medical record, except that --
5.2.2.A. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
5.2.2.B. First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
5.2.2.C. Government officials investigating compliance with this Act shall be provided relevant information on request; and.
5.2.3. The results of such examination are used only in accordance with these regulations.
5.3. An employer shall not use any test or other selection criteria that discriminates against individuals with disabilities unless:
5.3.1. The employer can demonstrate that the test or other criteria is job related for the job in question; and
5.3.2. The employer can demonstrate that there is not an alternate test or set of criteria that has less discriminatory impact.
5.4. An employer shall select and administer tests concerning employment so as to best ensure that the test results accurately reflect the applicant's job skills, aptitude, or whatever factor the test purports to measure, rather than measuring the applicant's impaired sensory, manual or speech skills, unless those skills are the ones the test purports to measure. The employer shall make reasonable accommodations for individuals with disabilities in testing, upon request, by providing such adaptive equipment as may be necessary and modifying testing procedures as appropriate. The employer shall supply such necessary and reasonable equipment for taking the test as the applicant shall request.
5.5. After commencement of employees employment duties, an employer shall not require a medical examination and shall not make inquires of an employee as to whether such employee has a disability or as to the nature or severity of the disability, unless:
5.5.1. Such examination or inquire is shown to be job related and consistent with business necessity; or
5.5.2. Such examination is a voluntary medical examination, including voluntary medical histories, which are part of an employee health program available to employees at that work site; and
5.5.3. Information obtained under subsections 5.5.1. and 5.5.2. regarding medical condition or history of any employee are subject to the requirements of subsections 5.2.2. and 5.2.3. of section 5.2.
5.6. For purposes of this Act, a test to determine the illegal use of drugs shall not be considered a medical examination, and noting in this Act shall be construed to encourage, prohibit or authorize the conducting of testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results.
W. Va. Code R. § 71-1-6 Housing Discrimination Prohibited
6.1. The following guidelines on discrimination in housing apply to owners, lessees, sublessees, assignees, or managing agents of, or other persons having the right of ownership or possession of the right to sell, rent, lease, assign, or sublease any housing accommodations or real property or part or portion thereof, or any agents or employees of any of them, or any real estate brokers, real estate salespersons, or employees or agents thereof.
6.2. It is unlawful to print, circulate, issue, display, post or mail, or cause to be printed, published, circulated, issued, displayed, posted or mailed any statement, advertisement, publication, or sign, or to use any form or application for the purchase, rental, lease, assignment or sublease of any housing accommodations or real property or part or portion thereof, which expresses, directly or indirectly, any discrimination as to disability or any intent to make any such discrimination and the production of any statement, advertisement, publicity, sign, form or application, record or inquiry purporting to be made by any such person shall be prima facie evidence in any action that the same was authorized by such person.
6.3. It is unlawful for any person to make any written or oral record or inquiry, or require the completion of any application which seeks information concerning the disability of any prospective purchaser, tenant, or prospective occupant of any housing accommodations or real property unless such information is required by an agency of state or federal government and the person states clearly that the information requested is intended for use solely by the government agency.
6.4. It is unlawful for any real estate broker, agent or salesperson to accept for listing any housing accommodation when the seller or lessor or his agent has expressed, directly or indirectly, an intention to discriminate against individuals with disabilities.
6.5. It is unlawful for any person to refuse to sell, rent, lease, assign or sublessee, or to evict or otherwise to deny or withhold from any person or group of persons any housing accommodations or real property, because of the disability of such person or group of persons. For example, a representation to any person, because that person possesses a disability, that real property is not available for inspection, sale or rental, when such real property is in fact so available, is a violation of the Act. Likewise, it is unlawful for any broker, agency, or salesperson to misrepresent the price of real property listed for sale, rent or lease or to fail to communicate to the seller or lessor any offer made by a prospective buyer or lessor because the applicant or prospective applicant possesses a disability.
6.6. It is unlawful for any person to fail or refuse to show, rent, or lease any housing accommodations or real property to a person with a disability who is required to be accompanied by a guide animal or by an attendant; or to evict any person for this reason. Policies which restrict the availability of housing accommodations to persons without pets shall be void with respect to persons with a disability who require guide animals.
6.7. It is unlawful to discriminate against any person or group of persons because of their disability in the price, terms, conditions, or privileges of the sale, rental, or lease of any housing accommodations or real property, or in the furnishing of faculties or services in connection therewith. Individuals with disabilities shall not be required to pay extra compensation due to the fact that they need special aids, accessories, or adaptive equipment.
6.8. It shall be unlawful for any person to refuse to make reasonable accommodations necessary for making housing accommodations or real property accessible to and functional for individuals with disabilities who rent, lease, or sublease any such housing accommodations or real property. In determining whether an accommodation is reasonable, the Commission shall consider:
6.8.1. The nature of the housing accommodation or real property and the number of living units, if any, which comprise it;
6.8.2. The nature and cost of the accommodation needed (taking into account alternate sources of funding, such as the Division of Vocational Rehabilitation);
6.8.3. Whether or not the housing accommodation or real property was purchased or improved with public funds; and
6.8.4. The requirements of the West Virginia Law on Disabled Persons and Public Use Buildings and Facilities, W. Va. Code §§18-10F-1, et seq. Any changes or alterations required due to the failure of the owner, managing agent of the owner (or his lessee or predecessor in title) to conform to the requirements of said statute will be considered per se reasonable.
6.9. It is unlawful for any person or financial institution or lender to whom application is made for financial assistance for the purchase, acquisition, construction, rehabilitation, repair or maintenance of any housing accommodations or real property, or any agent or employee thereof to:
6.9.1. Discriminate against any person or group of persons because of the disability of such person or group of persons, or of the prospective occupants or tenants of such housing accommodation or real property, in the granting, withholding, extending, modifying or renewing, or in the fixing of the rates, terms, conditions, or provisions of any such financial assistance or in the extension of services in connection therewith; or to
6.9.2. Use any form of application for such financial assistance or to make any record of inquiry in connection with applications for such financial assistance which expresses, directly or indirectly, any discrimination as to disability or any intent to make any such discrimination, unless such information is required by an agency of the state or federal government, and the person making the inquiry states clearly that the information requested is intended for use solely by the government agency.
§7-1-7. Public Accommodations.
7.1. These regulations apply to any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodations as defined by W. Va. Code §16B-17-2(j).
7.2. It shall be unlawful to refuse, withhold from, or deny, either directly or indirectly, to any individual because of disability, any of the accommodations, advantages, facilities, privileges, or services to qualified individuals with disabilities, the privileges of such place of public accommodation.
7.3. It shall be unlawful to publish, circulate, issue, display, post, or mail, either directly or indirectly, any written or printed communication, notice, or advertisement to the effect that any of the accommodations, advantages, facilities, privileges, or services of any such place shall be refused, withheld from, or denied to any individual on account of disability, or that the patronage or custom threat of any individual with a disability is unwelcome, objectionable, not acceptable, undesired, or not solicited. However, any person may advertise that a place of public accommodation is barrier free or otherwise accessible to individuals with disabilities.
7.4. It is unlawful to discriminate against an individual with a disability in the price, terms, or conditions upon which access to the accommodations, advantages, facilities, services, or privileges of any public accommodation may depend.
7.5. Individuals with disabilities have the right to be accompanied by a guide animal in any place of public accommodation.
7.6. Individuals with disabilities have the right to be accompanied by an attendant in any place of public accommodation.
7.7. It shall be unlawful to refuse to make reasonable accommodations necessary to make any public accommodation accessible to and functional for individuals with disabilities. In determining whether an accommodation is reasonable, the Commission shall consider:
7.7.1. The nature and size of the public accommodation;
7.7.2. The nature and cost of the accommodation needed;
7.7.3. Whether or not the public accommodation is owned, operated, funded, or used, by an agency of government; and
7.7.4. The requirements of the West Virginia Law on Disabled Persons and Public Use Buildings and Facilities, W. Va. Code §§18-10F-1, et seq. Any changes or alterations required due to the failure of the owner, managing agent of the owner (or his lessee or predecessor in title) to conform to the requirements of said statute will be considered per se reasonable.
71CSR1
Series 02 Rules of Practice and Procedure Before the West Virginia Human Rights Commission
W. Va. Code R. § 71-2-1 General
1.1. Scope. -- The following procedural regulations set forth the practice and procedure established by the West Virginia Human Rights Commission, hereinafter “Commission” for carrying out its responsibilities in the administration and enforcement of the West Virginia Human Rights Act, W. Va. Code §§16B-17-1, et seq., as amended.
1.1.1. Policy. -- All persons appearing before the West Virginia Human Rights Commission shall have their rights, privileges, or duties determined with due regard for fundamental fairness. Any person may be represented by private legal counsel at any stage of proceedings before the Commission, except as more fully set forth in these rules. In any contested care before the Commission, all parties thereto shall be provided with an adequate notice of hearing; a fair hearing; and an objective decision supported by substantial evidence.
1.2. Authority. -- W. Va. Code §16B-17-8(h).
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Procedure governed. -- These regulations shall govern all practice and procedure before the West Virginia Human Rights commission unless otherwise directed by the Commission.
1.6. Liberal construction. -- These regulations shall be liberally construed to permit the Commission to discharge its statutory functions and to secure just and expeditious determination of all matters before the West Virginia Human Rights Commission.
1.7. Deviation from regulations. --- In special cases, where good cause appears and not contrary to statute, the Commission or its administrative law just may permit deviation from these regulations insofar as it may find compliance therewith to be impractical or unnecessary.
1.8. Practice where regulations do not govern. -- In situations where these regulations do not apply, the Commission or its administrative law judge shall exercise discretion in accordance with traditional notions of fairness and justice.
1.9. Severability. -- If any of these regulations are held invalid, it shall not be construed to invalidate any of the other provisions of these regulations not otherwise affected.
1.10. Availability of regulations. -- The regulations of the Commission shall be on file in the office of the Secretary of State.
1.11. Additional copies. -- Additional copies of the regulations of the Commission shall be available to the general public at the offices of the Secretary of State.
1.12. Delegation of powers and duties. -- Except where contrary to law, the Commission may delegate any of the powers and duties of the Commission to the executive director, administrative law judge, or other employees or agents of the Commission.
1.13. Effect of amendments to the Act. -- In the event that the West Virginia Human Rights Act, W. Va. Code §§16B-17-1, et seq. is amended by the Legislature, these rules and regulations will automatically be amended to conform to such amendments.
W. Va. Code R. § 71-2-2 Definitions
All words defined in W. Va. Code §16B-17--8 of the Act shall have the meanings therein ascribed to them for the purposes of these regulations. All other words shall have the meanings herein ascribed to them.
2.1. The term "Act" shall mean the West Virginia Human Rights Act.
2.2. The term "answer" means that response required in section 6.1.
2.3. The term "chairperson" shall mean the chairperson of the West Virginia Human Rights Commission elected by the Commission.
2.4. The term "Commissioner" shall mean one of the duly appointed members of the West Virginia Human Rights Commission.
2.5. The term "Commission's attorney" shall mean an attorney on the staff of the Commission or from the Office of the Attorney General who renders legal services to the Commission.
2.6. The term "complaint" shall mean a written statement alleging that an unlawful discriminatory practice has been committed and which shall be signed under oath and filed with the Commission in conformity with section 3.
2.7. The term "complainant" may mean any individual, any organization which has an individual member claiming to be aggrieved by unlawful discrimination, the Commission or the Attorney General, who has filed a complaint with the Commission.
2.8. The term "compliance director" shall mean any member(s) of the staff designated by the executive director as having responsibility in overseeing the activities of compliance functions.
2.9. The term "administrative law judge" shall mean that statutory officer referred to in W. Va. Code §16B-17-6 or an attorney assigned by the Commission or its executive director to conduct a public hearing or perform other functions authorized by the Act or the Commission's rules and regulations.
2.10. The term "party" or "parties" shall mean the complainant, the respondent, the Commission, if appropriate, and any person authorized by the Commission to intervene in any proceeding.
2.11. The term "reply" means that response required by section 4.2.
2.12. The term "respondent" shall mean any person against whom a complaint has been filed alleging an unlawful discriminatory practice within the meaning of the Act.
2.13. The term "service" when required by these rules shall be that service as is described in Rule 4 of the West Virginia Rules of Civil Procedure.
W. Va. Code R. § 71-2-3 Complaint: Content, Filing Time, Amendment, Withdrawal and Dismissal; Preservation of Records
3.1. Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice may make, sign and file with the Commission a written, verified complaint.
3.2. Any employer whose employees, or some of them, hinder or threaten to hinder compliance with the provisions of the Act may make, sign and file with the Commission a written, verified complaint requesting assistance by conciliation or other remedial action.
3.3. The Commission or the Attorney General may make, sign and file a complaint whenever either has reason to believe that any person has engaged, or is engaging, or proposes to engage in an unlawful discriminatory practice.
3.4. Any organization which has an individual member claiming to be aggrieved by an alleged unlawful discriminatory practice may make, sign and file with the Commission a written, verified complaint.
3.5. A complaint deferred/referred to the Commission by the United States Equal Employment Opportunity Commission pursuant to the Civil Rights Act of 1964 or the Age Discrimination in Employment Act or by the United States Department of Housing and Urban Development pursuant to the Civil Rights Act of 1968 shall be deemed filed with the Commission as of the date such complaint was received by the United States Equal Employment Opportunity Commission or the United States Department of Housing and Urban Development.
3.6. Assistance in drafting and filing complaints shall be available to complainants through the Commission and its staff.
3.7. The complaint shall be in writing, the original being signed and verified before a notary public or other person duly authorized to administer oaths and take acknowledgements. The complaint shall be filed with the Commission and where feasible, shall be upon forms prepared by the Commission, blanks of which shall be supplied by the Commission upon request. Notarial service shall be furnished without charge by the Commission.
3.8. Each complaint shall contain the following to the best information of the complainant:
3.8.1. The name and address of the complainant;
3.8.2. The name and address of the respondent;
3.8.3. A concise statement setting forth the facts deemed to constitute the alleged discrimination;
3.8.4. The date or dates of the alleged unlawful discriminatory practice, or if the alleged unlawful discriminatory practice is of a continuous nature, the date on which the unlawful practice began and the last day on which it occurred; and
3.8.5. The verified signature of the complainant.
3.9. Manner of filing a complaint:
3.9.1. A complaint may be filed at any Commission office either by personal delivery or by mail;
3.9.2. The complaint shall be deemed filed as of the date it is received at any Commission office;
3.9.3. When a complaint is received at a Commission office, the person accepting the complaint shall stamp the complaint with the date it was so received. Docketing of all complaints shall be completed promptly; and
3.9.4. Timeliness of complaint:
3.9.4.a. A complaint shall be filed within 365 days after the occurrence of the alleged unlawful discriminatory practice or act;
3.9.4.b. If the alleged unlawful discriminatory practice or act is of a continuing nature, the date of the occurrence of the said alleged unlawful practice shall be deemed to be any date subsequent to the commencement of the alleged unlawful practice up to and including the date upon which the unlawful practice has ceased;
3.9.4.c. Where the Commission is informed by an individual, who is claiming to be aggrieved and who has given sufficient information as set forth below prior to the expiration of the 365 limitation period, the Commission may institute a memorandum of complaint. Such memorandum of complaint shall contain the essential elements of a complaint as required by these regulations, excepting signature and verification by the complainant, and shall be signed, dated and verified before a notary public or other person duly authorized to administer oaths and take acknowledgements by the person drafting such memorandum of complaint. A complaint received by the Commission subsequent to and based upon said memorandum of complaint shall be deemed filed as of the date that the said memorandum of complaint has been signed and verified;
3.9.4.d. Any complaint alleging acts which are unlawful under the West Virginia Human Rights Act which is filed with federal agencies having deferral/referral arrangements with the Commission, shall be deemed filed with the Commission on the same day as the complaint was received by such federal agency; and
3.9.4.e. In computing any period of time prescribed or allowed by these rules or by any applicable statute, the date of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation period.
3.10. Amending the complaint:
3.10.1. The Commission or the complainant may amend a complaint or any part thereof to cure technical defects or omissions, including but not limited to, failure to verify the complaint, or to clarify and amplify allegations made therein, when such amendments relate back to the original filing date; provided, however, an amendment alleging additional acts constituting unlawful discriminatory practices which are not related to or growing out of the subject matter of the original complaint will be permitted only when, as of the date of the amendment, the allegations could have been timely filed as a separate charge; and
3.10.2. A complaint may be amended any time prior to a finding of probable cause, and thereafter for good cause shown at the discretion of the administrative law judge.
3.11. Upon the filing of a complaint or amended complaint, the Commission shall promptly serve the respondent with a copy thereof together with a notice setting forth the requirements of section 4.2.
3.12. Withdrawal of a complaint:
3.12.1. Upon written notice to the Commission, or administrative law judge if the case has been noticed for public hearing, a complainant may withdraw the complaint. A complainant may withdraw a complaint at any time; and
3.12.2. Upon such withdrawal of complaint, the Commission, by its executive director or chairperson, may initiate its own complaint based on the allegations of the withdrawn complaint. The filing date of such Commission-initiated complaint shall relate back to the original filing date of the withdrawn complaint.
3.13. Dismissal of complaint:
3.13.1. Whenever it appears upon investigation of a complaint that the Commission lacks jurisdiction over the parties or the subject matter of the complaint, the Commission shall dismiss the complaint without further action, except such as is provided by section 4.14.;
3.13.2. The Commission may, upon its own initiative, dismiss a complaint for the following reasons:
3.13.2.a. A showing of discharge in bankruptcy of the respondent or that the complainant no longer has a right to file as a creditor or that such filing would be unproductive;
3.13.2.b. Failure to locate the complainant; provided, that reasonable effort has been made by the Commission's staff to locate the complainant. Reasonable effort shall be deemed to have been made if there has been a return of certified or regular mail stating that the complainant has moved and left no forwarding address and an unproductive inquiry into complainant's whereabouts has been made from the contact person listed in the background information form submitted by the complainant;
3.13.2.c. Refusal by complainant to cooperate with the processing of the complaint or otherwise to cooperate with the Commission's staff or the Commission's attorney, provided that the complainant shall first be notified and warned via certified mail that continued failure or refusal to cooperate shall result in the dismissal of the complaint;
3.13.2.d. Death of the complainant, provided that next-of-kin has indicated verbally or in writing to the Commission that she or he does not wish to proceed in the matter;
3.13.2.e. Mootness of the allegations of the complaint;
3.13.2.f. Failure of the complaint, when construed in a light most favorable to complainant, and after reasonable investigation, to state facts upon which relief can be granted under the Act. Whether a reasonable investigation has been conducted shall be determined on a case-by-case basis;
3.13.2.g. Such other reason, for which there is clear and convincing support in the record, indicating that to proceed on the complaint would be contrary or inimical to the purposes of the Act; and
3.13.3. When a complaint has been dismissed, the complainant, and respondent when the complaint has been served, shall be notified in writing of the disposition of the complaint together with the reasons therefor and the complainant shall be notified of her/his proposed dismissal as provided in section 4.14.
3.14. Respondents shall have the duty to preserve the following records:
3.14.1. When a complaint has been served on an employer, labor organization or employment agency, the respondent shall preserve all personnel records relevant to the investigation until such complaint is finally adjudicated and the respondent shall be so advised in the notice mentioned in section 3.11. The term "relevant to the investigation" shall include, but not be limited to, personnel, employment or membership records relating to the complainant and to all other employees, applicants or members holding or seeking positions similar to that held or sought by the complainant, and application forms or test papers completed by any unsuccessful applicant and by all other applicants or candidates for the same position or membership as that for which the complainant applied and was not accepted and any records which are relevant to the scope of the investigation as defined in the notice or complaint;
3.14.2. Where a complaint or notice of investigation has been served on a membership club, respondent in a housing complaint, or respondent in a public accommodation complaint, the respondent shall preserve all records relevant to the investigation until such complaint is finally adjudicated and the respondent shall be so advised in the notice mentioned in section 3.11. The term "relevant to the investigation" shall include, but not be limited to, applications on file at the time the complaint was filed and those received following service of the complaint whether or not they have been accepted or rejected, membership lists, records of payment of initiation fees or regular dues, together with the minutes of meetings of the club conducted in conformity with the constitution or by-laws adopted by the membership;
3.14.3. Any other books, papers, documents, or records of any form which are relevant to the scope of any investigation as defined in the notice or complaint shall be preserved during the pendency of any proceedings by all parties to the proceedings unless the Commission specifically orders otherwise; and
3.14.4. Violation of this rule may result in prosecution as in W. Va. Code §16B-17-14.
3.15. Class actions.
3.15.1. Prerequisites to a class action. One or more members of a class may file a complaint as representative parties on behalf of all, or, upon a determination by the Commission that class wide relief may be appropriate, the Commission may independently file a complaint, when the behavior of the respondent reflects a pattern or practice of discrimination which is illegal under the West Virginia Human Rights Act, subject to the following provisions;
3.15.2. Class actions maintainable. An action may be maintained as a class action if, in the opinion of the executive director, subsection 3.15.1. is satisfied, and if:
3.15.2.a. The executive director determines that the prosecution of separate actions by individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or 3.15.2.b The executive director determines that the party opposing the class has acted or refused to act on the grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or
3.15.2.c. The executive director determines that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
3.15.2.c.1. The interest of members of the class in individually controlling the prosecution or defense of separate actions;
3.15.2.c.2. The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
3.15.2.c.3. The desirability or undesirability of concentrating the litigation of the claims
3.15.2.c.4. The difficulties likely to be encountered in the management of a class action.
3.15.3. Determination by order whether a class action to be maintained; notice; judgment; actions conducted partially as class actions.
3.15.3.a. In a class action maintained under this rule, where the West Virginia Human Rights Commission pursues the complaint on behalf of the class, as soon as possible after a finding of probable cause, the Commission shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. However, where the West Virginia Human Rights Commission does not pursue the complaint on behalf of the class, the named complainants shall direct notice to the members of the class. The cost of notification shall be reimbursed by respondents who either agree to a settlement or are found liable of violating the West Virginia Human Rights Act. Notice shall advise each member that:
3.15.3.a.1. The class action is pending;
3.15.3.a.2. The administrative law judge will exclude the member from the class if the member so requests by a specified date; and
3.15.3.a.3. The judgment will be binding on all members who do not request exclusion or who have not filed a separate and independent complaint.
3.15.3.b. When appropriate, a complaint may be brought or maintained as a class action with respect to particular issues, or a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly;
3.15.3.c. Settlement procedures. The parties in a class action may agree to a settlement, of which all class members shall receive notice. The respondent shall pay for the notice of settlement; and
3.15.3.d. Dismissal or compromise. A class action shall not be dismissed or compromised without the approval of the administrative law judge, and notice of any proposed compromise shall be given to all members of the class in such manner as the administrative law judge directs.
W. Va. Code R. § 71-2-4 Investigation; Determination; Conciliation; Request for Review; and Mediation
4.1. After a complaint has been filed, the compliance director shall within 75 days but not to exceed 150 days conduct a prompt investigation of the allegations of the complaint.
4.2. Any person against whom a complaint has been filed shall serve upon the Commission and the complainant a written reply to the complaint within ten days of receipt of the complaint. Such reply shall contain a statement of the facts and circumstances surrounding the allegations contained in the complaint and may include any documents or other evidence related to the subject matter of the complaint.
4.3. The Commission may by interview or deposition take the testimony of any person, including a party, relating to the subject matter of a complaint. Any person making a statement may obtain a copy of that statement.
4.4. The Commission may order any person, including a party, to produce and permit the inspection and copying or photographing of any designated documents, papers, books, accounts, letters, photographs, or other tangible things, not privileged, which may constitute or contain evidence relating to the subject matter of a complaint.
4.5. The Commission may order any party to complete a questionnaire or interrogatories relating to the subject matter of a complaint. Such questionnaire or interrogatories shall be completed and returned to the Commission within ten days of receipt thereof. For good cause, the compliance director may grant an extension of time for its completion and return of up to seven calendar days at his/her discretion.
4.6. To effectuate the purposes of the Act, whenever possible the Commission will seek to obtain documentary evidence, statements, and testimony from witnesses by voluntary compliance with the request of the Commission for such discovery. However, if there is non-compliance with such voluntary requests for discovery, such actions shall, at the discretion of the executive director, result in the application of an adverse inference against the party to whom the request for discovery is propounded regarding all unanswered inquiries. If it is decided to apply such adverse inference against a party, such party must be notified of this action in writing.
4.7. In addition to the adverse inference mentioned in section 4.6., if there has been non-compliance with the request of the Commission for such discovery, the executive director or the chairperson may issue subpoenas and subpoenas duces tecum in the name of the Commission for the purpose of obtaining any information relevant to any lawful activity of the Commission. Such subpoenas may be signed by the chairperson, or her/his representative in her/his absence, and/or the executive director.
4.8. If the Commission conducts an interview of any person at the place of work of that person, the Commission shall conduct the interview so as not to interfere with the party's duties and responsibilities to his employer. Where the Commission conducts such interview, the employer shall be given reasonable notice. Failure of the employer to cooperate subjects the employer to the penalties described in W. Va. Code §16B-17-14.
4.9. If during the investigation of a complaint, terms of settlement are agreed to between complainant and respondent, the same shall be reduced to writing, signed by the parties and attached to a withdrawal executed by the complainant, whereupon the case shall be closed unless the Commission has determined that it has a continuing interest in the case independent of that of the complainant.
4.10. The executive director, or the compliance director, or the Commission's attorney, as designated by the executive director, shall authorize a ruling dismissing a complaint when it has been determined after a reasonable investigation of the allegations of such complaint that there is no probable cause to believe that respondent has engaged in an unlawful discriminatory practice pending appeal by complainant pursuant to section 4.14. A copy of a ruling dismissing a complaint shall be served upon the complainant and respondent within 15 days of such determination.
4.11. If it is decided that there is no probable cause to credit the allegations of an individual complainant as such allegations pertain to that individual, but it appears that there is probable cause to credit allegations or findings of a pattern and practice of discrimination by the respondent, no matter whether such pattern and practice was alleged by complainant or discovered through investigation, in such case the individual complainant shall be dismissed from further proceedings by the Commission, pending appeal by complainant pursuant to section 4.14., and the Commission shall proceed to prosecute the complaint, as amended, in its own name.
4.12. If the executive director, or compliance director, or the Commission's attorney, as designated by the executive director, finds that probable cause exists for crediting the allegations of the complaint, the Commission shall promptly notice the case for public hearing.
4.13. The Commission encourages settlement efforts during all phases of its procedures. When engaging in conciliation endeavors, the Commission shall adhere to the following guidelines:
4.13.1. Nothing that is said or done during and as a part of the endeavors of the Commission to eliminate unlawful discriminatory practices by methods of conference, conciliation, and persuasion may be made a matter of public information by the Commission, its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the parties concerned: provided, that the Commission may publish the terms of a conciliation agreement when the complaint has been settled without disclosing the identities of the parties involved;
4.13.2. This subsection does not apply to such disclosures to the representatives of federal, state, and local agencies as may be appropriate or necessary to the carrying out of the Commission's functions under the Act: provided, that the Commission may refuse to make disclosures to any such agency which does not maintain the confidentiality of such endeavors in accord with this section or in any circumstance where the disclosures will not serve the purposes of the effective enforcement of the Act;
4.13.3. The requirements of this subsection shall not be construed to limit the power of the Commission to conduct further investigations in preparation for a hearing or for other purposes in connection with its statutory duties while it is engaging in conciliation endeavors, nor shall they be construed to prohibit the use of evidence obtained through such investigations;
4.13.4. If the Commission or its executive director determines that either party or its agents, assigns, or successors has violated or is violating the terms of settlement and adjustment, the Commission or any party may initiate action in the circuit court of the county where the respondent resides or transacts business, as set forth in W. Va. Code §16B-17-8(d)(5) or may take any action consistent with the Act which it deems appropriate; and
4.13.5. In appropriate circumstances to be determined by the executive director or her/his designee, the Commission may exercise its statutory authority to conciliate a complaint without the approval or agreement of the complainant. In such circumstances, the following guidelines shall apply:
4.13.5.a. If, after a reasonable investigation, the respondent and the Commission, but not the complainant, agree upon conciliation terms consistent with the requirements of the complaint, the Commission shall serve upon the complainant a copy of the proposed conciliation agreement. If the complainant now agrees to the terms of the agreement, or fails to object to such terms in writing within 15 days after its service upon her/him, the Commission shall issue an order embodying such conciliation agreement;
4.13.5.b. If complainant does file written objections, unless they are met or withdrawn within ten days after service thereof, the Commission shall either end its conciliation efforts and notice the complaint for hearing or, upon a written finding by the Commission or its executive director that the terms of the proposed conciliation agreement are in the public interest and the specific reason(s) therefor, execute the agreement regardless of complainant's objections and notice the parties for hearing solely as to the merits of the complainant's objections to the agreement. The agreement may be executed on behalf of the Commission by its executive director or her/his designee;
4.13.5.c. Each conciliation agreement shall include provisions requiring the respondent to refrain from the commission of unlawful discriminatory practices in the future and shall contain such further provisions as may be agreed upon by the Commission and the respondent;
4.13.5.d. Not later than one year from the date of a conciliation agreement, the Commission shall investigate whether the respondent is complying with the terms of such agreement. Upon a findings of non-compliance, the Commission shall take appropriate action to assure compliance; and
4.13.5.e. If, after a hearing regarding the merits of the complainant's objections to the conciliation agreement, the administrative law judge finds that the agreement, when compared to the merits of the complainant's underlying case, is arbitrary, capricious, an abuse of discretion or based upon incorrect assessments of fact or conclusions of law, the administrative law judge may void the agreement, in whole or in part, and schedule a public hearing on the complaint or that portion of the agreement which has been voided. Otherwise, the administrative law judge shall affirm the agreement and enter a final decision dismissing complainant's objections and adopting the agreement.
4.14. The following procedures shall apply whenever there is a proposed dismissal of the complaint, except when a complaint is dismissed by an administrative law judge or pursuant to a settlement reached by the parties or pursuant to a conciliation agreement between the Commission and the respondent, in which cases these procedures do not apply.
4.14.1. Upon the notice to the complainant of the proposed dismissal of her/his complaint, a complainant may request from the Commission, through its compliance director or such other person as the executive director may designate, a meeting to discuss the proposed dismissal of her/his complaint. Requests shall be in writing, and shall be filed at the Commission's office within ten days from the date of complainant's receipt of the adverse determination;
4.14.2. If, after having received proper notice, the complainant does not appear at the meeting, the complainant shall be deemed to have waived all rights to a meeting unless it is shown to the satisfaction of the executive director or the chairperson that the failure to appear was due to circumstances beyond the complainant's control;
4.14.3. The meeting shall be conducted as follows:
4.14.3.a. All decisions and actions growing out of or upon any such meeting shall be reserved for determination by the chairperson or the executive director;
4.14.3.b. The Commission's executive director or other designated person shall meet with the complainant who shall be provided with all public information in the Commission's file pertaining to the complaint. The complainant shall have the opportunity to present any relevant information that the determination of no probable cause was in error. The presiding person, after considering the information, shall file a confidential report and recommendation with the executive director which shall recommend that the dismissal of the complaint be upheld, reversed, or modified or that the complaint be remanded for further investigation. The confidential report shall be filed within 15 days after the meeting;
4.14.3.c. If, following such meeting, it is determined that probable cause exists to substantiate the allegations in the complaint, a recommended finding of probable cause will be made and reported to the chairperson or executive director. The chairperson or executive director shall forward the case to the administrative law judge for public hearing;
4.14.3.d. If, following such meeting, the determination of no probable cause is affirmed, the complaint shall be dismissed and the complainant and respondent shall be sent notification of such finding by certified mail, return receipt requested within 15 days of such determination;
4.14.3.e. If, following such meeting, it is determined that additional investigation would assist the Commission in determining whether probable cause exists, the chairman or the executive director shall return the case to the investigator for an additional investigation as may be required; and
4.14.3.f. The determination of the Commission or executive director regarding the meeting is not a determination on the merits of the case. Upon a finding of no probable cause, a dismissal order, accompanied by a "right to sue" letter, shall be provided to the complainant.
4.15. The Commission, in cooperation with the West Virginia State Bar and other organizations and individuals, has adopted the following procedure with regard to mediation of complaints alleging a violation of the Act:
4.15.1. Scope. These rules shall govern mediation of complaints filed with the West Virginia Human Rights Commission;
4.15.2. Mediation defined. Mediation is an informal, non-adversarial process whereby a neutral third person, the mediator, assists parties to a dispute to resolve by agreement some or all of the differences between them. In mediation, decision-making authority remains with the parties; the mediator has no authority to render a judgment on any issue of the dispute. The role of the mediator is to encourage and assist the parties to reach their own mutually-acceptable settlement by facilitating communication, helping to clarify issues and interests, identifying what additional information should be collected or exchanged, fostering joint problem-solving, exploring settlement alternatives and other similar means. The procedures for mediation are extremely flexible, and may be tailored to fit the needs of the parties to the particular dispute;
4.15.3. Selection of cases for mediation. Pursuant to these rules, the executive director of the Commission may choose, or an administrative law judge may on his or her own motion, upon motion of any party, or by stipulation of the parties, refer a case to mediation. Upon entry of an order referring a case to mediation, the parties shall have 15 days within which to file a written objection, specifying the grounds. The administrative law judge shall promptly consider any such objection, and may modify his or her original order for good cause shown. A case ordered for mediation shall remain on the docket and hearing calendar;
4.15.4. Listing of mediators. The West Virginia State Bar shall maintain and make available to the administrative law judges, interested parties and the public, a listing of persons willing and qualified to serve as mediators before the West Virginia Human Rights Commission. The State Bar shall establish minimum qualifications for training and experience, application procedures and fees, and other appropriate requirements for persons interested in being listed. The listing shall identify those persons who are willing to serve as mediators on a volunteer basis (i.e., without compensation). The listing shall be open to all persons who meet the qualifications and complete the application required by the State Bar;
4.15.5. Selection of mediator. Within 15 days after entry of an order or stipulation referring a case to mediation, the parties, upon approval of the Commission, may choose their own mediator, who may or may not be a person listed on the State Bar listing. In the absence of such agreement, the administrative law judge shall designate the mediator from the State Bar listing, either by rotation or by some other neutral administrative procedure established by the Commission;
4.15.6. Compensation of mediator. If the parties by their own agreement choose a mediator who requires compensation, then the parties shall by written agreement determine how the mediator will be compensated. If the Commission designates the mediator, then it shall whenever possible select a mediator who is willing to serve without compensation. The Commission may reimburse a volunteer mediator for reasonable travel expenses. If a voluntary mediator is not available, then the administrative law judge shall inquire of the parties whether they are willing to pay the fees of a mediator. If so, then either the parties by stipulation or the Commission shall select the mediator, and the parties by written agreement shall determine how the mediator will be compensated;
4.15.7. Mediator disqualification. A mediator shall be subject to Canon 3 of the Code of Judicial Conduct regarding disqualification for partiality or conflict of interest. Any party may move the administrative law judge to disqualify a mediator for good cause. In the event a mediator is disqualified, the parties or the administrative law judge shall select a replacement in accordance with subsections 4.15.5. and 4.15.6.;
4.15.8. Provision of preliminary information to the mediator. The administrative law judge may require the parties to provide pertinent information to the mediator prior to the first mediation session. Such information may include, but is not limited to: (1) copies of the pleadings, transcripts or other litigation-related documents or (2) a confidential statement summarizing a party's position on the issues, status of settlement discussions, and what relief would constitute an acceptable settlement;
4.15.9. Timeframes for conduct of mediation. Unless otherwise agreed by the parties and the mediator, or otherwise ordered by the administrative law judge, the first mediation session will be conducted within 60 days after appointment of the mediator. Mediation shall be completed within 45 days after the first mediation session, unless extended by agreement of the parties and the mediator, or by order of the administrative law judge. The mediator is empowered to set the date and time of all mediation sessions, upon reasonable notice to the parties;
4.15.10. Appearances; sanctions. The following persons, if furnished reasonable notice, are required to appear at any mediation session scheduled by the mediator, unless excused by the mediator or the administrative law judge: (1) each party, or the party's representative, having full authority to settle without further consultation; (2) each party's counsel of record; and (3) a representative with settlement authority of the insurance carrier for any insured party. If a party, or its representative, counsel, or insurance carrier, fails to appear at a duly noticed mediation session without good cause, the Commission upon motion may impose sanctions including an award of reasonable mediator and attorney fees and other costs, against the responsible party;
4.15.11. Participation. No party may be compelled by these rules, the administrative law judge or the mediator to settle a case involuntarily or against the party's own judgment or interest. All parties involved in the mediation, however, and their respective representatives, counsel and insurance carriers, shall be prepared to negotiate openly and knowledgeably about the case in a mutual effort to reach a fair and reasonable settlement;
4.15.12. Confidentiality of mediation process. Mediation shall be regarded as confidential settlement negotiations, subject to Rule 408 of the West Virginia Rules of Evidence. A mediator shall maintain and preserve the confidentiality of all mediation proceedings and records. A mediator shall keep confidential from opposing parties information obtained in an individual session unless the party to that session or the party's counsel authorizes disclosure. A mediator may not be subpoenaed or called to testify or otherwise be subject to process requiring disclosure of confidential information in any proceeding relating to or arising out of the dispute mediated;
4.15.13. Immunity. A person acting as mediator under these rules shall have immunity in the same manner and to the same extent as a circuit court judge;
4.15.14. Enforceability of settlement agreement. If the parties reach a settlement and execute a written agreement, the agreement is enforceable in the same manner as any other written contract;
4.15.15. Report of mediator. Within ten days after mediation is completed or terminated, the mediator shall report to the Commission the outcome of the mediation. With the consent of the parties, the mediator may identify any pending motions, discovery, or other issues which, if resolved, would facilitate the possibility of settlement and
4.15.16. Statistical information. The West Virginia Human Rights Commission shall determine the need and method for statistical reporting on disputes referred for mediation under these rules. The administrative law judges, mediators, parties and counsel shall cooperate with requests for information under this rule.
W. Va. Code R. § 71-2-5 Notice of Hearing; Continuances
5.1. After a finding of probable cause to credit the allegations of the complaint, the Commission shall cause to be issued and served in the name of the Commission, a written notice of hearing, together with a copy of the verified complaint, as the same may have been amended. Service of said notice and complaint upon the respondent shall be in the manner provided by law for the service of summons in civil actions and shall be served at least 30 days prior to the time set for the hearing. Service upon other parties shall be by personal delivery or certified mail, return receipt requested.
5.2. Notice of the hearing shall be issued no later than the 76th day after docketing if probable cause has been determined, but in any event, a notice of hearing shall be issued no later than the 150th day after docketing.
5.3. The notice of hearing shall state the time and place of the hearing, inform the respondent that she/he must file a written, verified answer to the complaint and that a failure to answer may be deemed an admission of the allegations of the complaint.
5.4. The respondent and complainant shall be advised in writing of the right to appear at such bearing in person and be represented by an attorney. If an attorney has previously appeared in this action on behalf of a party, a copy of the notice of hearing and complaint, as the same may have been amended, shall be furnished to said attorney.
5.5. The notice of hearing shall contain a statement that the public hearing will be conducted by an administrative law judge whose name will be designated or will be subsequently designated by the Commission's chairperson or executive director. The executive director shall have the authority to appoint qualified attorneys as administrative law judges pro tempore to hear any and all matters that may be heard by an administrative law judge.
5.6. The following rules shall govern the granting or denial of a continuance once a date and time for a public hearing has been set:
5.6.1. The grant or denial of continuances lies within the sound discretion of the administrative law judge, balancing the inconvenience and unfairness to others and the public interest of the State of West Virginia against the asserted hardship to the requesting party should the continuance be denied;
5.6.2. For good cause shown, the administrative law judge may grant a continuance on the application of any party. If a continuance is granted, costs incurred on account of the continuance may be assessed against the party moving for the continuance at the discretion of the administrative law judge;
5.6.3. Motions for continuances shall be filed without delay with the administrative law judge after the grounds therefor become known to the party;
5.6.4. All such motions for continuance shall be in writing and must be supported by a showing of good cause why the request should be granted;
5.6.5. It is the responsibility of the party requesting a continuance to duly serve on all other parties the motion for continuance. Objections raised to the filing of such motion shall be submitted in writing to the administrative law judge within five (5) days of receipt of said motion for continuance;
5.6.6. Oral motions for continuance will only be allowed when the opposing party, or the agent for the opposing party, or the opposing party's attorney has been notified, and when the administrative law judge is satisfied that there is no time for a written motion and the lateness of the motion was not caused by undue delay or lack of diligence by the moving party. If the motion for continuance is oral, the resistance may be oral, but the administrative law judge shall make and submit a written memorandum reflecting the event;
5.6.7. Written notice of the grant or denial of a continuance request shall be provided to all parties by the administrative law judge; and
5.6.8. Within five days of the notice of a grant of continuance, the administrative law judge will cause to be served on all parties an order setting forth the alternative date for said hearing to convene.
5.7. Copies of all pleadings and papers filed in connection with a public hearing shall be served on all parties, and/or their attorneys, and the administrative law judge by the party filing such pleadings or papers.
W. Va. Code R. § 71-2-6 Answer
6.1. The respondent against whom a verified complaint, as the same may have been amended, is filed and upon whom a notice of hearing and a copy of such complaint has been served, shall file a written, verified answer within ten days from the service of such complaint and notice of hearing. Upon application in writing made to the administrative law judge prior to the end of said ten-day period, the administrative law judge may, for good cause shown, extend the time in which the answer shall be filed. This answer is in addition to the reply required to be filed by section 4.2.
6.2. The filing shall be made by personal delivery or by certified mail, return receipt requested, to the administrative law judge, and by personal delivery or first class mail to all parties.
6.3. The answer shall be in the following form:
6.3.1. The answer shall be in writing, the original being signed and verified by the respondent or respondent's attorney. The answer shall contain the post office address of the respondent and, if represented by an attorney, the name, mailing address, and telephone number of said attorney;
6.3.2. The answer shall contain a general or specific denial of each and every allegation of the complaint controverted by the respondent or a denial of any knowledge or information thereof sufficient to form a belief as to the truth or falsity, and a statement of any matter constituting a defense;
6.3.3. Any allegation in the complaint which is not denied or admitted in the answer, unless the respondent shall state in the answer that it is without knowledge or information sufficient to form a belief, may be, in the discretion of the administrative law judge, deemed admitted; and
6.3.4. Any allegation of new matter contained in the answer shall be deemed denied by the complainant without the necessity of a reply being filed, unless otherwise ordered by the administrative law judge.
6.4. The answer or any part thereof may be amended at the discretion of the administrative law judge on motion duly made.
6.5. In any case where a complaint has been amended, the respondent shall have the opportunity to amend its answer within such period as may be fixed by the administrative law judge.
6.6. The administrative law judge may proceed to hold a hearing and may make findings of fact and enter an appropriate order upon the testimony taken at the hearing, notwithstanding any failure of the respondent to appear or to file an answer within the time provided herein.
W. Va. Code R. § 71-2-7 Hearings: Administrative Law Judge; Appearances; Subpoenas; Discovery; and Procedure
7.1. All hearings shall be open to the public except in extraordinary circumstances when the administrative law judge determines, with the consent of the parties, that substantial justice would not be effectuated thereby.
7.2. Hearings shall be held in the county where the respondent resides or transacts business, or, when agreed to by the parties, where the acts complained of occurred or any other mutually agreeable place. The place of the hearing will be designated by the administrative law judge.
7.3. In the discretion of the administrative law judge two or more proceedings against the same respondent arising out of the same set of circumstances, or two or more proceedings by the same complainant against two or more respondents arising out of the same set of circumstances, may be consolidated for the purpose of hearing.
7.4. A qualified administrative law judge designated by the chairperson or the executive director shall preside over the hearing.
7.4.1. The conduct of the administrative law judge shall, where applicable, be guided by the Judicial Code of Ethics; and
7.4.2. Any party may file with the administrative law judge a motion, made in good faith, alleging that the administrative law judge should not be allowed to hear the case. The motion shall be determined by the administrative law judge prior to the taking of other evidence. If the motion is denied by the administrative law judge, the moving party may file an appeal within ten days after receipt of such written denial to the executive director, whose decision to affirm, reverse or modify the decision of the administrative law judge shall be final. If the motion is granted by the administrative law judge, any party may appeal to the executive director who may affirm, reverse or modify the decision of the administrative law judge. The decision of the executive director shall be final.
7.5. The complainant shall be present at the hearing unless excused by the administrative law judge because of extraordinary circumstances, provided, that if the respondent shows that the complainant's absence will cause undue hardship to the presentation of its case, the respondent shall be entitled to a continuance.
7.5.1. In the event that complainant fails to appear and has not been excused, the administrative law judge may proceed with the hearing and take evidence or the administrative law judge may take any other action, including but not limited to, dismissing the complaint without the taking of testimony.
7.6. The respondent may appear at the hearing with or without counsel. Failure of a respondent to appear shall not prevent presentation of the case or the entering of a final decision.
7.7. The case in support of the complaint shall be presented by the Commission's attorney or agent. In cases in which the complainant is represented by private counsel, and with the consent of the chairperson or the executive director or their designee, and after a determination that the Commission has no independent interest in the matter, the case in support of the complaint shall be presented solely by the complainant's attorney and the Commission shall not itself be represented by counsel at the hearing.
7.8. Any person not initially joined in the proceeding shall be permitted to timely petition the administrative law judge for intervention by counsel upon the filing of a motion and notice to the parties, which shall set forth the grounds for said intervention. The administrative law judge shall rule upon the motion and set forth in an order such matters as may be required.
7.9. All attorneys intending to appear at a Commission proceeding shall file a notice of appearance with the administrative law judge. The filing of an answer executed or prepared by an attorney shall constitute a notice of appearance. An attorney at law who appears for a party to the proceeding at any stage therein shall be deemed to remain that party's attorney throughout the proceeding until:
7.9.1. The party represented files with the administrative law judge a written revocation of the attorney's authority; or
7.9.2. The attorney files with the administrative law judge a written statement of her/his withdrawal from the case; or
7.9.3. The administrative law judge receives notice of the attorney's death or disqualification.
7.10. Service of any document or paper (except subpoenas, subpoenas duces tecum, final decisions, final orders) on an attorney for a party shall be deemed service on the party she/he represents.
7.11. All motions other than those made during a hearing shall be in writing and shall state briefly the order or relief applied for and the grounds for such motion. Any such motion shall be filed with the administrative law judge. A copy of the motion shall be served at the same time upon the Commission's attorney and other parties to the hearing. A response, if any, shall be filed in writing with the administrative law judge, within five days after service of the motion and a copy thereof shall be served within the same period upon the Commission's attorney and other parties to the hearing. Such motions shall be decided by the administrative law judge, without oral argument thereon, unless the administrative law judge, as appropriate, shall determine to hear oral argument, in which case the parties shall be notified of such fact and of the time and place for such oral argument. In the discretion of the administrative law judge, oral argument on a motion may be heard by telephone.
7.12. Subject to the pertinent provisions of the Act, the Commission may issue subpoenas and subpoenas duces tecum either at its own instance or upon written application of a party to the administrative law judge whenever necessary to compel the attendance of witnesses and the introduction of books, records, correspondence, documents, papers or any other evidence which relates to any matter before the Commission.
7.12.1. Where a subpoena is issued at the instance of a party to the hearing, the cost of service, witness and mileage fees shall be borne by the party at whose request the subpoena is issued. Where the subpoena is issued at the instance of the Commission, the cost of such service shall be borne by the Commission. Such witness and mileage fees shall be the same as are paid witnesses in the courts of this state. All requests by parties for subpoenas and subpoenas duces tecum shall contain a statement acknowledging that the requesting party agrees to pay such fees; and
7.12.2. Subpoenas and subpoenas duces tecum shall be enforced as provided in W. Va. Code §29A-5-1(b).
7.13. Subject to the provisions of these regulations, the administrative law judge shall have full authority and discretion to control the procedure of the hearing, to admit or exclude testimony or other evidence, and to rule upon all motions and objections. The administrative law judge may inquire of any witness presented by any party. After notice of the hearing is issued and subject to the provisions of the Act, the administrative law judge, may issue subpoenas duces tecum in furtherance of her/his duties and responsibilities.
7.13.1. On any question which would be determinative of the jurisdiction of the Commission, or might otherwise result in the dismissal of the complaint, the administrative law judge may issue a final decision on the merits accompanied by findings of fact and conclusions of law, either before or after the taking of testimony;
7.13.2. The administrative law judge may continue a hearing from day to day or adjourn it to a later date or to a different place by announcement thereof at the hearing or by appropriate notice to all parties; and
7.13.3. Motions made during a hearing and objections with respect to the conduct of a hearing, including objections to the introduction of evidence, shall be stated orally and shall, along with the ruling of the administrative law judge, be included in the transcript of the hearing.
7.14. Subsequent to the issuance and service of notice of public hearing upon a respondent, the parties may employ the pre-hearing discovery measures set forth throughout Rule 7 of these rules and regulations, in addition to oral interviews and informal requests for documents or other materials and information.
7.14.1. Discovery shall commence upon notice of hearing and extend over such time as determined by the administrative law judge;
7.14.2. The staff of the Commission shall not be examined either by interrogatory or deposition except when leave to undertake such examination is granted by the administrative law judge upon motion alleging that:
7.14.2.a. The staff person has direct personal knowledge of evidence relevant to the proceeding other than evidence gathered as a result of investigation;
7.14.2.b. For other reasons, which shall be set forth with particularity, justice requires that the petition be granted; or
7.14.2.c. Discovery has revealed that the staff person will be called as a witness.
7.14.3. Information which is exempt from discovery includes but is not limited to:
7.14.3.a. Any record, report, memorandum, or communication dealing with the internal practice, policy and procedure of the Commission;
7.14.3.b. Any record, report, memorandum, or communication of staff or any staff meeting regarding the institution, progress or result of an investigation of a complaint or regarding matters prepared in anticipation of a hearing;
7.14.3.c. Any record, report, memorandum, or communication regarding any endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation or persuasion;
7.14.3.d. The work product of an investigator or other staff member made in the course of an investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint, or any report, record, memorandum, or communication made by staff during the investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint which is otherwise privileged;
7.14.3.e. Any memorandum, statement or mental impression prepared or obtained by the Commission's attorney; and
7.14.3.f. The identity of confidential informants and sources, unless they are to be used as witnesses.
7.15. In any action, the administrative law judge may direct the parties or the attorneys for the parties and the Commission to appear before her/him for a conference to consider, or to submit by a pre-hearing memorandum, the following:
7.15.1. Stipulations of uncontested facts, which shall be deemed to be proven facts for purposes of the hearing record;
7.15.2. The necessity or desirability of amendments to the pleadings;
7.15.3. A list of all exhibits each party is going to offer into evidence at trial, including any objections to be raised by the opposing party, or stipulations regarding admissibility or authenticity;
7.15.4. A list of all witnesses who shall be called by any party. If such witness shall be called as an expert, the party to call such expert shall briefly describe the topic which the expert's testimony shall address;
7.15.5. Such other matters as may aid in the disposition of the action;
7.15.6. Should any party fail to comply with the pre-hearing memorandum requirement, the administrative law judge, on motion or sue sponte, may file a recommendation of dismissal or default or other appropriate order imposing sanctions as justice may require, including those delineated in section 7.27.; and
7.15.7. The administrative law judge shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by stipulations or agreements of counsel. After said order has been examined by counsel and entered, it controls the subsequent course of the action, unless modified at the hearing to prevent manifest injustice. The administrative law judge may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided. Objections to the prehearing order may be noted on the record for appeal purposes.
7.16. Parties may obtain discovery from one or more of the following methods:
7.16.1. Depositions may be obtained only by motion served upon the parties and by order of the administrative law judge;
7.16.2. Written interrogatories may be used but are limited to a total of 40 questions to be answered by any person, party, agent, or witness to whom the interrogatories are propounded. This numerical limitation of questions applies whether or not the questions appear in sets, subsets, sections, or otherwise; and
7.16.3. Requests to produce documents or things or permission to enter upon land or other property, for inspection and other purposes. Unless the administrative law judge orders otherwise, the frequency of use of this method is not limited, provided, however, in those cases in which a party is proceeding pro se the party requesting the discovery shall file a written motion with the administrative law judge requesting leave to perfect the same. The administrative law judge shall review said motion and issue an order either denying the request or providing the conditions by which the discovery shall be conducted.
7.17. Unless otherwise limited by order of the administrative law judge in accordance with these rules, the scope of discovery is as follows:
7.17.1. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not a ground for objection that the information sought will be inadmissible if the information sought appears reasonably calculated to lead to the discovery of admissible evidence;
7.17.2. Subject to the provisions of subsection 7.17.3. of this rule, a party may obtain discovery of documents and tangible things otherwise not discoverable under subsection 7.17.1. of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including an attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and that she/he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the administrative law judge shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation;
7.17.3. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
7.17.3.a. A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion; and
7.17.3.b. Upon motion, the administrative law judge may order further discovery by other means, subject to such restrictions as the administrative law judge may deem appropriate.
7.18. Protective orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the administrative law judge may make such order as justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following measures:
7.18.1. That the discovery not be had;
7.18.2. That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
7.18.3. That the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
7.18.4. That certain matters may not be inquired into, or that the scope of the discovery be limited to certain matters;
7.18.5. That discovery be conducted with no one present except persons designated by the administrative law judge;
7.18.6. That a deposition after being sealed be opened only by order of the administrative law judge or Commission;
7.18.7. That a trade secret or other confidential research development, or commercial information not be disclosed or be disclosed only in a designated way;
7.18.8. That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the administrative law judge; and
7.18.9. If the motion for a protective order is denied, in whole or in part, the administrative law judge may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of subsection 7.27.4. apply to the award of expenses incurred in relation to a motion for a protective order.
7.19. Unless the administrative law judge upon motion, for the convenience of parties and witnesses and in the interests of justice, orders otherwise, methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery.
7.20. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement such response to include information thereafter acquired, except as follows:
7.20.1. A party is under a duty seasonably to supplement a response with respect to any question directly addressed to the identity and location of persons having knowledge of discoverable matters, or the identity of each person expected to be called as an expert witness at trial, the subject matter on which she/he is expected to testify, and the substance of her/his testimony;
7.20.2. A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which she/he knows that the response was incorrect when made, or she/he knows that the response, though correct when made, is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment; and
7.20.3. A duty to supplement responses may be imposed by order of the administrative law judge, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.
7.21. The parties may by written stipulation filed with the administrative law judge:
7.21.1. Provide that depositions may be taken before any persons, at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions; and
7.21.2. Modify the procedures provided by these rules for other methods of discovery.
7.22. Depositions of any person may be requested upon motion by any party and the administrative law judge by order may establish the circumstances under which the depositions are to be taken. This rule does not prevent the administrative law judge from refusing to allow the taking of any deposition or in any way limit the administrative law judge's discretion as provided in these rules.
7.23. Physical and mental examinations for discovery purposes will be allowed only for good cause shown upon motion to the administrative law judge and only when medical testimony is to be substantially relied upon in the action. In those circumstances, the administrative law judge may order the examination of any person, the cost of which, including reasonable travel expenses, loss of wages, etc., shall be borne by the requesting party. Under certain circumstances the requesting party may also be required to pay the expenses of a necessary traveling companion and the examined party's attorney and/or physician.
7.24. The administrative law judge shall take notice of the Commission's Rules Governing Discrimination Against the Disabled and all other pertinent rules duly promulgated by the Commission.
7.25. Subject to the limitations and proviso of subsection 7.16.2. any party or the Commission may serve upon any other party, their attorney or agent, written interrogatories to be answered by the party designated or, if the party designated is a public or private corporation or a partnership or association or governmental agency, by any officer or agent, who shall furnish such information as is available to the party.
7.25.1. Each interrogatory shall be answered separately and fully in writing, under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them, and the objections signed by the attorney making them. The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections, if any, within 20 days after service of the interrogatories. Upon motion, the administrative law judge may allow a shorter or longer time or expand the number of questions limited by subsection 7.16.2. The party submitting the interrogatories may move for an order under section 7.27. with respect to any objection to or other failure to answer an interrogatory;
7.25.2. Interrogatories may relate to any matters which can be inquired into under section 7.17., and the answers may be used to the extent permitted by the Rules of Evidence as set forth in section 7.30.; and
7.25.3. An interrogatory otherwise proper is not necessarily objectionable merely because an answer to the interrogatory involves an opinion or contention that relates to fact or the application of law to fact, but the administrative law judge may order that such an interrogatory need not be answered until after designated discovery has been completed or until a pretrial conference or other later time.
7.26. Any party, subject to the proviso of section 7.16., may serve on any other party a request to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy, any designated documents (including writings, drawings, graphs, charts, photographs, phonorecords, and other data compilations from which information can be obtained, translated, if necessary, by the responding party through detection devices into reasonably usable form), or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of section 7.17. and which are in the possession, custody, or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property of any designated object or operation thereon, within the scope of section 7.17.
7.26.1. The request shall set forth the items to be inspected either by individual item or by category, and describe each item and category with reasonable particularity. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts;
7.26.2. The party upon whom the request is served shall serve a written response within 20 days after service of the request. The administrative law judge may allow a shorter or longer time. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under section 7.27. with respect to any objection to or other failure to respond to the request or any part thereof, or any failure to permit inspection as requested; and
7.26.3. This rule does not preclude an independent request directed to a person not a party for production of documents and things and permission to enter upon land.
7.27. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
7.27.1. A motion for an order to compel discovery shall be made to the administrative law judge. The administrative law judge may set the motion for hearing or rule upon the motion without a hearing;
7.27.2. If a party fails to answer an interrogatory submitted under section 7.25., or if a party, in response to a request for production or inspection submitted under section 7.26. fails to respond or to permit inspection or production as requested, the discovering party may move for an order compelling an answer, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before applying for an order as set forth in this rule. If the administrative law judge denies the motion in whole or in part, she/he may make such protective order as she/he would have been empowered to make on a motion made pursuant to section 7.18.;
7.27.3. For purposes of this subsection an evasive or incomplete answer is to be treated as a failure to answer;
7.27.4. If the motion to compel is granted the administrative law judge may, after opportunity for hearing, require as part of his or her final decision that the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the administrative law judge finds that the opposition to the motion was reasonably justified or that other circumstances make an award of expenses unjust. If the motion is denied, the administrative law judge may, after opportunity for hearing, require as part of his or her final decision that the moving party or the attorney advising such conduct or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the administrative law judge finds that the making of the motion was reasonable or that other circumstances make the award of expenses unjust. If the motion is granted in part and denied in part, the administrative law judge may recommend apportioning the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner; and
7.27.5. If a party or an officer, director, or managing agent of a party or a person designated to testify on behalf of a party fails to obey an order to provide or permit discovery, the administrative law judge may make such orders in regard to the failure as are just, and among others, the following:
7.27.5.a. An order that the matters regarding which the order was made, or any other designated facts, shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
7.27.5.b. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing designated matters into evidence;
7.27.5.c. An order striking pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
7.27.5.d. In lieu of any of the foregoing orders, or in addition thereto, an order treating as a contempt of the Commission the failure to obey any orders; and
7.27.5.e. In lieu of any of the foregoing orders, or in addition thereto, the administrative law judge may require as part of his or her final decision that the party and/or attorney failing to obey these rules pay the reasonable expenses, including attorney's fees, caused by the failure, unless the administrative law judge finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
7.28. If a party or an officer, director, or managing agent of a party or a person designated to testify on behalf of a party fails:
7.28.1. To appear before the officer who is to take his deposition, after being served with proper notice, and order, or
7.28.2. To serve answers or objections to interrogatories submitted under Rule 7.25., after proper service of the interrogatories, or
7.28.3. To serve a written response to a request for production or inspection submitted under section 7.26., after proper service of the request, subsection 7.28.4., then the administrative law judge, on motion, may make such orders in regard to the failure as are just. In lieu of any order or in addition thereto, the administrative law judge may require as part of her/his final decision that the party failing to act or the attorney advising him or both pay the reasonable expenses, including attorney's fees, caused by the failure, unless the administrative law judge finds that the failure was reasonable or that other circumstances make an award of expenses unjust. The failure to act described in this subsection may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by section 7.18.
7.29. Upon notice to the parties and the Commission, clerical mistakes and inadvertence in orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the administrative law judge, or the Commission at any time on its own initiative, or on the motion of any party and, after such notice, if any, as the administrative law judge or the Commission orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the court, and thereafter while the appeal is pending may be so corrected with leave of the court.
7.30. The established Rules of Evidence shall apply, as modified by W. Va. Code §29A-5-2, except when contrary to the Act or these rules.
7.31. Evidentiary depositions may be taken upon a motion and order as provided in section 7.21. The extent of use shall be determined by the administrative law judge.
7.32. When issues not raised in the complaint, as amended, or answer, as amended, are heard by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence may be made upon motion of any party at any time, even after a final decision; but failure to so amend shall not affect the adjudication of the hearing of these issues. If evidence is objected to at the hearing on the ground that it is not within the issued raised by the pleadings, the administrative law judge may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to show that admission of such evidence would prejudice her/him in maintaining a defense on the merits. The administrative law judge may grant a continuance to enable the objecting party to meet such evidence.
7.33. The administrative law judge may exclude from the hearing room or from further participation in the preceding any person who engages in improper conduct, including a party to the proceeding, attorney of record, a witness engaged in testifying, or an observer.
7.34. Television, newsreel, motion picture, still or other cameras may be operated in the hearing room while the public hearing is in progress only with the permission of the administrative law judge. Mechanical recording devices other than those provided by the Commission or at its direction may be operated in the hearing room during the course of the hearing only with the permission of the administrative law judge.
7.35. The Commission shall cause the hearing to be recorded by a reporter or by an electronic recording device. If an electronic recording device is used, the parties shall be given the opportunity to provide a reporter at their own expense, however, the reporter's transcript, if one is made, will not be considered the official record of the hearing. At the request of the parties, copies of the official hearing transcript will be furnished to the parties upon their payment, in advance, of the reasonable costs thereof to the Commission, provided that a copy of the transcript shall be forwarded to the Commission's attorney without charge.
7.36. At any time after a hearing has closed, but prior to rendering a decision, the administrative law judge upon her/his own motion or upon motion by any party, may reopen the hearing for good cause to receive further evidence or argument. Should the administrative law judge reopen the hearing, notice shall promptly be given to all the parties as to the time and place further proceedings will occur.
7.37. The administrative law judge may permit the parties or their attorneys to present oral arguments at the hearing and may require briefs to be filed within such time limit as the administrative law judge shall determine. Oral argument shall not be included in the transcript of testimony unless the administrative law judge so directs.
7.37.1. At the close of the hearing the administrative law judge may order or may permit the parties to submit a recommended decision to the administrative law judge within a time to be specified by the administrative law judge. A recommended decision shall include suggested findings of fact, conclusions of law and arguments in support thereof, along with the final decision by the administrative law judge which the party desires; and
7.37.2. During the time period specified by the administrative law judge for submission of the parties' recommended decision as set forth above, the parties shall be permitted to file by affidavit an itemized statement of reasonable attorney fees and costs, clearly setting forth the hourly rate and total amount, and any argument in support thereof. A party shall be given fifteen days during which to file exceptions to the attorney(s) fee affidavit filed by any other party or as recommended by the administrative law judge.
W. Va. Code R. § 71-2-8 The Record
8.1. The record of the proceedings before the Commission shall consist of the complaint and amended complaint, if any, answer, notices of hearing, written applications, stipulations, motions, orders, transcript or recording of the record of the hearing, exhibits, depositions, briefs, any recommended decision, the final decision of the administrative law judge, and the final order the Commission.
W. Va. Code R. § 71-2-9 Final Decision of the Administrative Law Judge
9.1. Within one year of the filing of the complaint, the administrative law judge shall issue a final decision on the merits which shall contain all findings of fact and conclusions of law necessary to support the decision, and, in the administrative law judge's discretion, an opinion containing the reasons for the decision.
9.2. If upon all the testimony, evidence and record of the hearing the administrative law judge shall find that the respondent has engaged in or is engaging in any unlawful discriminatory practice as defined by the Act, the administrative law judge shall issue an order requiring such respondent to cease and desist from such unlawful discriminatory practice and to take such affirmative action as will effectuate the purpose of the Act, and to report from time to time on the manner and extent of compliance with the final decision and which shall include an award reimbursing complainant for out-of-pocket losses.
9.3. In addition to the remedies outlined in section 9.2. above, the administrative law judge may:
9.3.1. Assess against a respondent an award of backpay to the victim or victims of discrimination pursuant to W. Va. Code §16B-17-10. For cases involving discriminatory acts which occurred after the effective date of the West Virginia Human Rights Act, July 1, 1967, the period for which backpay may be awarded shall commence with the date of the discriminatory act and end when such backpay is actually tendered by the respondent. For cases involving discriminatory acts which occurred before the effective date of the West Virginia Human Rights Act, the effects of such discriminatory acts continuing to a time after the effective date of the West Virginia Human Rights Act, the period for which backpay may be awarded may commence with the effective date of the West Virginia Human Rights Act, July 1, 1967, and end when such backpay is actually tendered by the respondent. Interest may also be included in such award of backpay as the administrative law judge may determine;
9.3.2. Award to complainant incidental damages up to $2,950.00, or such amount as may be adjusted from time to time by the Commission in accord with the standard established in Bishop Coal Co. v. Salyers, 380 S.E.2d 238 (W. Va. 1989);
9.3.3. Award such other equitable relief as will make the complainant whole, including, but not limited to, an award of attorney's fees and costs; and
9.3.4. If upon all the testimony, evidence and record of the hearing the administrative law judge shall find that the respondent has not engaged in any unlawful discriminatory practice as defined in the Act, the administrative law judge shall issue a decision dismissing the complaint as to such respondent.
9.4. Reserved
9.5. Copies of the administrative law judge's final decision shall be served by certified mail, return receipt requested, on the complainant, the respondent, all intervenors, and counsel of record, and by personal delivery or first class mail on the Commission's attorney and all other persons, offices or agencies deemed appropriate by the administrative law judge or the Commission.
9.6. All final decisions rendered by an administrative law judge shall be filed at the central office of the Commission and shall be open to public inspection during regular office hours of the Commission.
W. Va. Code R. § 71-2-10 Appeal to the Commission
10.1. Within 30 days of receipt of the administrative law judge's final decision, any party aggrieved shall file with the executive director of the Commission, and serve upon all parties or their counsel, a notice of appeal, and in its discretion, a petition setting forth such facts showing the appellant to be aggrieved, all matters alleged to have been erroneously decided by the administrative law judge the relief to which the appellant believes she/he is entitled, and any argument in support of the appeal.
10.2. The filing of an appeal to the Commission from the administrative law judge shall not operate as a stay of the decision of the administrative law judge unless a stay is specifically requested by the appellant in a separate application for the same and approved by the Commission or its executive director.
10.3. The notice and petition of appeal shall be confined to the record.
10.4. The appellant shall submit the original and nine copies of the notice of appeal and the accompanying petition, if any.
10.5. Within twenty days after receipt of appellant's petition, all other parties to the matter may file such response as is warranted, including pointing out any alleged omissions or inaccuracies of the appellant's statement of the case or errors of law in the appellant's argument. The original and nine copies of the response shall be served upon the executive director.
10.6. Within sixty days after the date on which the notice of appeal was filed, the Commission shall render a final order affirming the decision of the administrative law judge, or an order remanding the matter for further proceedings before an administrative law judge, or a final order modifying or setting aside the decision. Absent unusual circumstances duly noted by the Commission, neither the parties nor their counsel may appear before the Commission in support of their position regarding the appeal.
10.7. When remanding a matter for further proceedings before an administrative law judge, the Commission shall specify the reason(s) for the remand and the specific issue(s) to be developed and decided by the administrative law judge on remand.
10.8. In considering a notice of appeal, the Commission shall limit its review to whether the administrative law judge's decision is:
10.8.1. In conformity with the Constitution and laws of the state and the United States;
10.8.2. Within the Commission's statutory jurisdiction or authority;
10.8.3. Made in accordance with procedures required by law or established by appropriate rules or regulations of the Commission;
10.8.4. Supported by substantial evidence on the whole record; or
10.8.5. Not arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
10.9. In the event that a notice of appeal from an administrative law judge's final decision is not filed within thirty days of receipt of the same, the Commission shall issue a final order affirming the administrative law judge's final decision; provided, that the Commission, on its own, may modify or set aside the decision insofar as it clearly exceeds the statutory authority or jurisdiction of the Commission. The final order of the Commission shall be served in accordance with section 9.5.
W. Va. Code R. § 71-2-11 Judicial Appeal
11.1. Judicial review of a final order of the Commission may be obtained by the complainant, respondent or other person aggrieved by such order.
11.2. A party who seeks judicial review must file his/her appeal within 30 days after receipt of the final order of the Commission.
11.3. For purposes of judicial appeal, the decision of the Commission affirming, modifying or setting aside the final decision of the administrative law judge shall constitute the final order of the Commission.
W. Va. Code R. § 71-2-12 General Investigations
12.1. The Commission may, at its discretion and in accord with the power conferred upon it by the Act, conduct such general investigations and hearings into problems of discrimination as it deems necessary or desirable and may study and report upon the problems of the effect of discrimination on any field of human relationships.
12.2. In pursuing its functions authorized by the Act and by this section, the Commission may exercise its full powers of discovery as set forth in the Act and in these regulations.
W. Va. Code R. § 71-2-13 Declaratory Rulings and Guidelines
13.1. Petitions for declaratory rulings filed with the Commission pursuant to W. Va. Code §§29A-4-1, et seq. shall contain the following:
13.1.1. A statement of the question on which the declaratory ruling is sought;
13.1.2. A full statement of the facts giving rise to the question;
13.1.3. A statement of the basis for the petitioner's interest in the question; and
13.1.4. Any legal argument which petitioner wishes to submit.
13.2. In order to determine the full facts giving rise to the question the Commission may require the petitioner to submit additional information, and it may make an independent investigation.
13.3. When the Commission is satisfied that it understands the question on which the declaratory ruling has been sought, it shall:
13.3.1. Issue a nonbinding declaratory ruling; or
13.3.2. Notify the petitioner that no declaratory ruling will be issued; or
13.3.3. Set a time and place for hearing argument on the question, notify the petitioner and other interested parties of the same, and issue either a binding or nonbinding declaratory ruling after the hearing, or decide that no declaratory ruling will be issued.
13.4. In order to educate the public and insure compliance with the West Virginia Human Rights Act, the Commission may from time to time promulgate guidelines for various areas of employment, housing, and public accommodations as are covered by the West Virginia Human Rights Act. Such guidelines shall be administered by the Commission staff and shall become a part of these rules and regulations by reference when adopted by the Commission. All guidelines in existence at the time of the adoptions of these rules and regulations shall also be incorporated by reference.
W. Va. Code R. § 71-2-14 Certification
14.1. The chairperson, executive director, or such other person as may be designated or authorized by the Commission are authorized to certify all documents or records which are part of the files and records of the Commission.
W. Va. Code R. § 71-2-15 Public Information
15.1. The documents listed below shall be available for inspection upon request. Duplication of materials available for inspection shall be subject to whatever charges the Commission may require for copying. Upon a showing of economic hardship, the Commission may waive or reduce normal fees for the copying of documents within its control or possession. The documents available are as follows:
15.1.1. Complaint;
15.1.2. Answer;
15.1.3. Consent Order;
15.1.4. Determinations and final dispositions of the Commission, any pleadings, briefs, subpoenas, answers, motions, responses, and orders filed or issued;
15.1.5. Notice of public hearing;
15.1.6. Transcript, exhibits and other evidence of record or of the hearing;
15.1.7. Decisions issued by the administrative law judge or Commission after public hearing; and
15.1.8. Notice of appeal from decision issued by the administrative law judge or the Commission.
15.2. The following materials shall not constitute public information:
15.2.1. Interrogatories and answers of respondent; and
15.2.2. Those materials set forth in subsections 7.14.2. and 7.14.3.
15.3. Notwithstanding the provisions of subsections 7.14.2. and 7.14.3., materials cited therein may be made available by order of the executive director or administrative law judge as provided below:
15.3.1. To counsel retained by the Commission or by complainant, for the purpose of conciliation, enforcement of a consent order or predetermination settlement, or presentation of the cases at public hearing;
15.3.2. To the complainant or to counsel retained by the complainant for the purpose of determining whether the case shall be removed to another forum pursuant to W. Va. Code §16B-17-13;
15.3.3. To local, state or federal agencies having concurrent jurisdiction over the case; and
15.3.4. In response to an order of any court having competent jurisdiction.
Series 03 Rules Regarding Religious Discrimination
W. Va. Code R. § 71-3-1 General
1.1. Scope. -- The following legislative regulations of the West Virginia Human Rights Act (HRA), W. Va. Code §§16B-17-1, et seq., set forth rules for complying with the Act's prohibition against discrimination on the basis of religion and are intended to assist all persons in understanding their rights, obligations, and duties under the law in regard to this aspect of the HRA.
1.2. Authority. -- W. Va. Code §16B-17-8(h).
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-3-2 Definitions
2.1. "Religion" means and includes:
2.1.1. All aspects of religious observance and practice, as well as belief.
2.1.2. Moral and ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. The fact that no religious group espouses such beliefs or that the religious group to which the individual professes to belong may not accept such belief will not conclusively determine whether the belief is a religious belief of the employee or prospective employee.
2.1.3. A religious practice or belief that is not absolutely mandated by a religious group but is a well established tradition among members of a faith.
2.2. "Religion" does not include:
2.2.1. Mere personal preferences or codes.
2.2.2. Social or political beliefs of a narrow, temporal character that are not intimately associated with religious convictions shared by an organized group.
2.3. "Reasonable accommodation" means reasonable modifications or adjustments and is determined on a case-by-case basis.
2.4. "Undue hardship" means that an accommodation would require more than a de minimis cost to the employer.
W. Va. Code R. § 71-3-3 Employment Discrimination Prohibited; Obligation to Make Reasonable Accommodations
3.1. No employer shall, on the basis of religion, discriminate against an individual concerning the terms, conditions, or privileges of employment unless it can be shown that the employer cannot reasonably accommodate an employee's or a prospective employee's religious observance or practice without undue hardship on the conduct of its business.
3.2. The duty not to discriminate on religious grounds includes an obligation on the part of the employer, and/or a labor organization, if applicable, to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship to the conduct of the employer's business, provided that the employee or prospective employee has notified the employer or labor organization of his or her need for a religious accommodation or the employer or labor organization has otherwise obtained knowledge of the need for such an accommodation.
3.2.1. Because of the particularly sensitive nature of refusing to hire or discharging an individual on account of his/her religious beliefs, the burden of proof that the accommodations required by the individual's religious needs impose an undue hardship to the conduct of the employer's business, is on the employer. Resolution of such cases depends on specific factual circumstances and involves a delicate balancing of an applicant or employee's religious needs with the degree of disruption imposed on the employer's business operation.
3.3. It is an unlawful employment practice for an employer to refuse to hire an applicant for employment or to discharge an employee who regularly observes Friday evening and Saturday, or some other day of the week, as the Sabbath or who observes certain special religious holidays during the year and, as as a consequence, does not work on such days, unless the employer can prove that there exists no reasonable accommodation of such religious needs or that such accommodations can only be made at the price of undue hardship.
3.4. The following subsections contain several suggested alternatives that may be used in attempting to accommodate the religious practices of employees or prospective employees. These suggested alternatives are not intended to be all inclusive as different factual circumstances surrounding the need for religious accommodation may require different solutions.
3.4.1. One possible means of reasonable accommodation without undue hardship is through voluntary swapping or substitution where a voluntary substitute with substantially similar qualifications is available. The individual seeking accommodation is responsible to facilitate the securing of a voluntary substitute when he or she knows of someone with substantially similar qualifications who is willing to substitute or swap positions. The duty to reasonably accommodate the religious practices of employees or prospective employees requires that the employer or labor organization facilitate the securing of a voluntary substitute with substantially similar qualifications as the individual requiring accommodation. Employers and labor organizations may consider some of the following means to facilitate the securing of such a voluntary substitute:
3.4.1.a. To publicize policies regarding accommodations and voluntary substitution;
3.4.1.b. To promote an atmosphere in which substitutions are favorably regarded;
3.4.1.c. To provide a central file, bulletin board or other means for matching voluntary substitutes with positions for which substitutes are needed;
3.4.1.d. The obligation to accommodate requires that the employer take affirmative steps to attempt to secure substitutions and swaps.
3.4.2. Employers and labor organizations may also consider creating a flexible work schedule for those individuals requiring religious accommodation. Some of the areas in which flexibility in work scheduling might be utilized are as follows:
3.4.2.a. Flexible arrival and departure times;
3.4.2.b. Floating or optional holidays;
3.4.2.c. Flexible work breaks;
3.4.2.d. Use of lunch time in exchange for early departure;
3.4.2.e. Staggered work hours; and
3.4.2.f. Use of accumulated compensatory time for time lost due to an observance of religious practices.
3.4.3. When an employee cannot be accommodated either as to his or her entire job or an assignment within the job, employers and labor organizations should consider whether or not it is possible to change the job assignment or give the employee a lateral transfer. As with voluntary substitutes or swaps, the availability of someone with substantially similar job-related qualifications may affect an employer's or labor organization's ability to allow such transfer or change in job assignment.
3.4.4. As a means of accommodating the religious practices of employees or prospective employees and when applicable, the Commission encourages employers and labor organizations to engage in discussions regarding exceptions to collective bargaining agreement provisions and any such discussions or agreement following such discussions may be considered as evidence of an attempt at reasonable accommodation.
3.5. A refusal to accommodate is justified only when an employer or labor organization, when applicable, can demonstrate that an undue hardship would in fact result from each available alternative method of accommodation. The employer of labor organization, when applicable, shall have the burden of showing that it took affirmative steps to attempt to reasonably accommodate an employee or prospective employees.
3.6. When more than one means of accommodation would not cause undue hardship, the employer must offer the alternative that least disadvantages the employee with respect to his/her employment opportunities. The employer or labor organization satisfies its duty to an employee or prospective employee once it offers all reasonable means of accommodation without undue hardship. An employee who fails to cooperate or accept accommodation may subject himself or herself to adverse or disciplinary action by the employer or labor organization where all reasonable accommodation without undue hardship has been offered.
3.7. The Commission will determine what constitutes more than a de minimis cost with due regard given to the identifiable cost in relation to the size and operating cost of the employer and the number of individuals who will require a particular accommodation. Generally, a regular cost, such as the continual payment of a premium wage to a substitute, will constitute undue hardship. However, the infrequent or temporary payment of premium wages to a substitute while a more permanent arrangement is being sought are costs that the employer will usually be required to bear. Administrative costs of rearranging schedules or duty rosters will generally not constitute more than de minimis costs.
3.8. A mere assumption that many more people, with the same or similar religious practices as the person being accommodated, may also need accommodation, is not evidence of undue hardship.
3.9. Undue hardship may be shown where a variance from a bona fide seniority system is necessary in order to accommodate an employee's religious practices and doing so would deny another employee his or her job or shift preference guaranteed by that system. Arrangements for voluntary substitutes and swaps do not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system. Nothing in these rules precludes an employer and a union from including arrangements for voluntary substitutes and swaps as part of a collective bargaining agreement.
3.10. An employer must accommodate an employee who refuses to perform certain tasks because of his/her religion unless those tasks are an essential function of the employee's position or cannot be reasonably reassigned to another employee.
3.11. An employer must accommodate an employee who refuses to comply with a dress or appearance code for religious reasons unless it can demonstrate that this refusal would violate an established health or safety code. A need of the employer to maintain a certain public image will not amount to undue hardship unless the employer can show that accommodation would have a detrimental impact on its business.
W. Va. Code R. § 71-3-4 Religious Harassment
4.1. Harassment in the workplace on the basis of religion is an unlawful employment practice. Unwelcome comments, jokes, acts and other verbal or physical conduct may constitute religious harassment when:
4.1.1. Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;
4.1.2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
4.1.3. Such conduct has the purpose of effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
4.2. An employer is responsible for its acts and those of its officers, agents and supervisory employees with respect to religious harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or reasonably should have known of their occurrence, except that the employer is not responsible if the officer, agent or supervisory employee was acting outside the scope of his or her employment.
4.3. With respect to persons other than those mentioned in section 4.2 above, an employer is responsible for acts of religious harassment in the workplace where the employer, or its agents or supervisory employees, knew or reasonably should have known of the conduct or expressly or impliedly authorized or ratified such conduct. An employer may rebut apparent liability for such acts by showing that it took timely and appropriate corrective action.
W. Va. Code R. § 71-3-5 Selection Practices
5.1. The duty to accommodate pertains to prospective employees as well as current employees. Consequently, an employer may not permit an applicant's need for a religious accommodation to affect in any way its decision whether to hire the applicant unless it can demonstrate that it cannot reasonably accommodate the applicant's religious practices without undue hardship.
5.2. It is an unlawful employment practice for any person to elicit or attempt to elicit any information directly or indirectly pertaining to the religion of applicants for employment. Examples of such a practice include the use of the following inquiries:
5.2.1. Requesting applicant's religious denomination, affiliation, church, parish, pastor, or religious holidays observed; representing to applicants that an employer is of a predominant or particular religious orientation.
5.2.2. Inquiry asking specifically for the religious affiliation of schools attended by the applicant.
5.2.3. Requirement of submission of a religious reference.
5.2.4. Any inquiry into willingness to work any particular religious holiday.
5.2.5. Requesting a list of all clubs, social fraternities, societies, lodges, or organizations to which the applicant belongs, other than trade, professional or service organizations.
5.3. The use of pre-selection inquiries which determine an applicant's availability may be considered to violate the West Virginia Human Rights Act unless the employer can show such inquiries:
5.3.1. Did not have an exclusionary effect on its employees or prospective employees needing an accommodation for religious practices; or
5.3.2. Were otherwise justified by business necessity.
5.4. Employers who believe they have a legitimate interest in knowing the availability of their applicants prior to selection must consider procedures which would serve this interest, but which would have a lesser exclusionary effect on persons whose religious practices need accommodation. An example of such a procedure is for the employer to state the normal work hours for the job and, after making it clear to the applicant that he or she is not required to indicate the need for any absences for religious practices during the scheduled work hours, ask the applicant whether he or she is otherwise available to work those hours. Then, after a particular available position is announced to an applicant, but before the applicant is hired, the employer can inquire into the need for a religious accommodation and determine, according to the principles of these rules, whether an accommodation is possible. This type of inquiry would provide an employer with information concerning the availability of most of its applicants, while deferring until after a position is offered the identification of the usually small number of applicants who require an accommodation.
5.5. The Commission may infer that the need for an accommodation discriminatorily influenced a decision to reject an applicant when prior to an offer of employment the employer makes an inquiry into an applicant's availability without having a business necessity justification, and after the employer has determined the applicants need for an accommodation, the employer rejects a qualified applicant. The burden is then on the employer to demonstrate that factors other than the need for an accommodation were the reason for rejecting the qualified applicant, or that a reasonable accommodation without undue hardship was not possible.
5.6. When a test or other selection procedure is scheduled at a time when an employee or prospective employee cannot attend because of his or her religious practices, the user of the test should be aware that the principles enunciated in these rules apply and that it has an obligation to accommodate such employee or prospective employee unless undue hardship would result.
5.7. Nothing in this regulation prohibits an applicant from voluntarily providing a potential employer with information which would aid in the employer's compliance with any statute, state or federal, or affirmative action plan.
5.8. Pre-employment inquiries which are made in conformance with the instructions from, or the requirements of, an agency or agencies of the local, state or federal government in connection with the administration of a fair employment practices program will not constitute evidence of unlawful employment discrimination.
W. Va. Code R. § 71-3-6 Application to Labor Organizations, Employment Agencies, and Apprentice Training Programs
6.1. In addition to employers, the rules set forth in this series shall also apply, when relevant, to labor organizations, employment agencies, and joint labor-management committees controlling apprentice training programs.
6.2. When a collective bargaining agreement includes a requirement that employees join a labor organization or pay a sum equivalent to its dues, the organization must accommodate an employee whose religious beliefs do not permit compliance by permitting him/her to donate a sum equivalent to dues to a charitable organization.
6.3. An employment agency that receives a job order containing an unlawful request based on religion will share responsibility with the employer placing the job order if the agency fills the order knowing that the religion specification is not based upon a bona fide occupational qualification. However, an employment agency will not be deemed to be in violation of the law, regardless of the determination as to the employer, if the agency does not have reason to believe that the employer's claim of bona fide occupational qualification is without substance and the agency makes and maintains a written records available to the Commission of each such job order. Such record shall include the name of the employer, the description of the job and the basis for the employer's claim of a bona fide occupational qualification.
W. Va. Code R. § 71-3-7 Exceptions
7.1. West Virginia Code §16B-17-9 provides an exception to the prohibition of discrimination in employment when such discrimination is based on a bona fide occupational qualification (BFOQ). The Commission construes the BFOQ provision very narrowly and the burden of proving the existence of a BFOQ is on the employer.
7.2. When a certain religious orientation is reasonably necessary to the normal operation of a business or enterprise, an employer may require that applicants for the position in question ascribe to that religion.
7.3. The employment discrimination provisions in these rules do not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its religious and religion-related activities. This exemption does not protect those activities of a religious institution that are for all practical purposes devoid of religious content and meaning.
W. Va. Code R. § 71-3-8 Public Accommodations
8.1. These regulations apply to any owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodations as defined by W. Va. Code §16B-17-2(j).
8.2. It shall be unlawful to refuse, withhold from, or deny, either directly or indirectly, to any individual because of religion, any of the accommodations, advantages, facilities, privileges, or services of such place of accommodation.
8.3. It shall be unlawful to refuse to make reasonable accommodations necessary to make any public accommodation available to persons otherwise excluded because of their religion, provided that such accommodations do not impose an undue hardship. The principles of reasonable accommodation and undue hardship, as set forth in section 3 of this rule, shall be used as guidelines in determining whether a person has been unlawfully discriminated against on the basis of religion by a place of public accommodations.
71CSR3
Series 04 Rules Regarding Sexual Harassment
W. Va. Code R. § 71-4-1 General
1.1. Scope. -- The following legislative regulations of the West Virginia Human Rights Act (HRA), W. Va. Code §16b-17-1, et seq., set forth guidelines for interpreting the Act's prohibition against discrimination on the basis of sex by means of sexual harassment and are intended to assist all persons in understanding their rights, obligations, and duties under the law in regard to this aspect of the HRA.
1.2. Authority. -- W. Va. Code §16b-17-8(h).
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-4-2 Sexual Harassment Prohibited
2.1. When it occurs in the workplace, harassment on the basis of sex is a violation of W. Va. Code §16B-17-9(a)(1). The HRA affords employees the right to work in an environment free from discriminatory intimidation, ridicule, or insult.
2.2. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when:
2.2.1. Submission to or rejection of such conduct is made either explicitly or implicitly a term or condition of an individual's employment or is exchanged for job benefits;
2.2.2. Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or
2.2.3. Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.
2.3. In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case-by-case basis, but in all cases the harassment complained of must be sufficiently severe or pervasive.
2.4. In determining whether alleged sexual harassment in a particular case is sufficiently severe or pervasive, the Commission will consider:
2.4.1. Whether it involved unwelcome physical touching;
2.4.2. Whether it involved verbal abuse of an offensive or threatening nature;
2.4.3. Whether it involved unwelcome and consistent sexual innuendo or physical contact; and
2.4.4. The frequency of the unwelcome and offensive encounters.
2.4.5. A person who has been harassed on an isolated basis may offer evidence of harassment suffered by other employees as proof that the harassment was pervasive or severe.
2.5. Harassment is not necessarily confined to unwanted sexual conduct. Hostile or physically aggressive behavior may also constitute sexual harassment, as long as the disparate treatment is based on gender.
W. Va. Code R. § 71-4-3 Employer Liability for Sexual Harassment
3.1. An employer, employment agency, joint apprenticeship committee or labor organization (hereinafter collectively referred to as "employer") is responsible for its acts and those of its officers, agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden by the employer and regardless of whether the employer knew or reasonably should have known of their occurrence, except that the employer is not responsible if the officer, agent or supervisory employee was acting outside the scope of his employment. The Commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted as an officer, or in either a supervisory or agency capacity, and acted within or outside of the scope of his employment.
3.2. With respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer (or its agents or supervisory employees) knew or reasonably should have known of such conduct, or expressly or impliedly authorized or ratified such conduct. As a defense an employer may show that it took timely and appropriate corrective action regarding such conduct.
3.3. An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knew or should have reasonably known of the conduct and failed to take timely and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer's control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.
3.4. Where employment opportunities or benefits are granted because of an individual's submission to the employer's sexual advances or requests for sexual favors, the employer may be held liable for unlawful sex discrimination against other persons who were qualified for but denied that employment opportunity or benefit.
3.5. Employers are encouraged to take all steps necessary to prevent sexual harassment from occurring. Appropriate preventative steps include, but are not limited to, affirmatively expressing strong disapproval of sexual harassment, developing and implementing appropriate sanctions, informing employees of their right to be free from harassment and the appropriate steps to take if harassment occurs, and developing methods to sensitize all employees regarding appropriate behavior in the workplace.
W. Va. Code R. § 71-4-4 Public and Housing Accommodations
4.1. This rule may be applied to any action involving an owner, lessee, proprietor, manager, superintendent, agent, broker, or employee of any place of public accommodations, as defined by W. Va. Code §16B-17-3(j), or of any housing accommodation, as defined by W. Va. Code §16B-17-3(k).
4.2. The concepts of duty and liability set forth in this series may be applied to instances of sexual harassment occurring in a place of public accommodations or involving the sale, rental, lease, assignment, sublease, or use of any housing accommodation.
71CSR4
Series 05 Rules Regarding Exemption of Private Clubs
W. Va. Code R. § 71-5-1 General
1.1. Scope. -- The following legislative regulations of the West Virginia Human Rights Act (HRA), W. Va. Code §16b-17--1 et seq., set forth guidelines for interpreting the Act's exemption of private clubs from the operation of its provisions and are intended to assist all persons in understanding their rights, obligations, and duties under the law in regard to this aspect of the HRA.
1.2. Authority. -- W. Va. Code §16b-17-8(h).
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-5-2 Exemption of Truly Private Clubs
2.1. The exemption afforded private clubs by the West Virginia Human Rights Act, W. Va. Code §16B-17-3(d), §16B-17-3(j), and §16B-17-19, may be invoked as a defense to a complaint filed under the HRA only by clubs which are truly private and which are not in fact open to the public.
2.2. In determining whether a respondent is a truly private club which is not in fact open to the public, the Commission shall examine the following factors:
2.2.1. Whether the respondent is a club in the ordinary sense of the word and was formed because of common associational interests among the members;
2.2.2. Whether it carefully screens applicants for membership and selects new members with reference to the common intimacy of the association;
2.2.3. Whether it limits its membership to a number small enough to allow full membership participation and to ensure that all members share the common associational bond;
2.2.4. Whether it limits the use of its facilities and services strictly to members and bona fide guests of members;
2.2.5. Whether it is controlled by the membership either in the form of a general meeting or some other organizational form;
2.2.6. Whether publicity is directed solely to members for their information and guidance;
2.2.7. Whether it is nonprofit and operated solely for the benefit of the members.
W. Va. Code R. § 71-5-3 Additional Indicators
3.1. In addition to the factors set forth in section 2.2. above, the Commission shall consider the following indicators in determining whether a respondent qualifies for a private club exemption:
3.1.1. It is an indicator that a club is not a truly private club not in fact open to the public if it provides regular meal service and regularly receives payment for dues, fees, use of space, facilities services, meals, or beverages directly or indirectly from or on behalf of nonmembers;
3.1.2. It is an indicator that a club is not truly private club not in fact open to the public if it carries on in any significant degree functions which are considered commercial in nature, such as if it provides a forum where business deals are often made and personal contacts valuable for business purposes, employment, and professional advancement are formed.
3.2. An alleged private club exemption must be examined in light of the HRA's clear purpose of protecting only the genuine privacy of private clubs whose membership is genuinely selective.
3.3. An alleged private club exemption must be examined in light of the remedial purpose of the HRA to eliminate discrimination.
W. Va. Code R. § 71-5-4 Standards of Review; Burden of Proof
4.1. The claimant of unlawful discrimination against a club has the burden of proving unlawful discrimination.
4.2. The following guidelines shall be considered in determining whether a purported private club is truly private pursuant to the criteria contained in section 2 and the indicators contained in section 3:
4.2.1. An alleged private club exemption shall be examined in light of the HRA's clear purpose of protecting only the genuine privacy of private clubs whose membership is genuinely selective.
4.2.2. An alleged private club exemption shall be examined in light of the remedial purpose of the HRA to eliminate discrimination.
4.3. The burden of proof in establishing the exemption for a truly private club and in sustaining the defense of freedom of expression is as follows:
4.3.1. The alleged private club shall bear the burden of proving that it is a truly private club not in fact open to the public and that it qualifies for a private club exemption.
4.3.2. The purported private club shall bear the burden of proving that compliance with the HRA imposes a serious burden on its members' freedom of expressive association.
W. Va. Code R. § 71-5-5 Preservation of and Defense of Right of Expressive Association
5.1. The Commission may not interfere in the activities of an alleged private club or subject club opportunities to scrutiny beyond what is necessary in good faith to enforce the HRA.
5.2. An alleged private club which is not in fact open to the public and which does not qualify for an exemption of truly private clubs pursuant to section 2 of this rule may defend a prima facie case of unlawful discrimination by demonstrating that compliance with the HRA imposes a serious burden on its members' freedom of expressive association.
5.2.1. A purported private club may have a defense to a claim of unlawful discrimination if the purported private club does not automatically exclude persons from consideration for membership, or enjoyment of club accommodations and facilities, and the advantages and privileges of membership on account of race, religion, color, national origin, ancestry, sex, blindness, handicap, or familial status.
5.2.2. A purported private club may have a defense to a claim of unlawful discrimination if the purported private club is selective in its membership based upon a stated criterion unique to club members and such criterion is the primary basis of association, and the denial of club membership is not automatically based upon the applicant's race, religion, color, national origin, ancestry, sex, blindness, handicap, or familial status. Example -- An alleged private club which requires that each member possess an IQ score exceeding 140 points may deny membership to a person with an IQ score less that 140 but may not deny membership to a person with an IQ score in excess of 140 on the basis of race, religion, color, national origin, ancestry, sex, blindness, handicap, or familial status.
71CSR5
Series 06 Rules Regarding Waiver of Rights Under the West Virginia Human Rights Act
W. Va. Code R. § 71-6-1 General
1.1. Scope. -- The following legislative rules set forth criteria for regulating the voluntary release or waiver of an individual's right to pursue a claim under the West Virginia Human Rights Act (HRA), W. Va. Code §16b-17-1, et seq. The West Virginia Code is available in public libraries and on the Legislature’s web page, http://www.wvlegislature.gov.
1.2. Authority. -- W. Va. Code §16B-17-8(h).
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-6-2 Commission's Right to Investigate
2.1. No waiver agreement signed by any individual shall affect the Commission's right and statutory duty to enforce the West Virginia Human Rights Act or to investigate any complaint filed before it. No waiver agreement may be used to justify interference with the right of an individual to file a complaint or participate in any proceeding conducted by this Commission.
W. Va. Code R. § 71-6-3 Waiver Must Be Knowing and Voluntary
3.1. An individual may not waive any right or claim under the West Virginia Human Rights Act unless the waiver is knowing and voluntary.
3.2. Except as provided in section 3.3., a waiver shall not be considered knowing and voluntary unless all of the following conditions are met:
3.2.1. The waiver is part of an agreement between the individual and the employer that is written in plain English and in a manner calculated to be understood by the average person with a similar educational and work background as the individual in question;
3.2.2. The waiver specifically refers to rights or claims arising under the West Virginia Human Rights Act;
3.2.3. The waiver does not extend to rights or claims that may arise after the date the waiver is executed;
3.2.4. The individual waives a right only in exchange for consideration that is in addition to anything of value to which the individual already is entitled;
3.2.5. The individual is advised in writing to consult with an attorney prior to executing the agreement and is provided with the toll-free telephone number of the West Virginia State Bar Association (1-866-989-8227);
3.2.6. The individual is given a period of at least 21 days within which to consider the agreement; and
3.2.7. The agreement provides that for a period of at least 7 days following execution of such agreement, the individual may revoke the agreement in writing, and the agreement shall not become effective or enforceable until the revocation period has expired.
3.3. If a party who has filed a complaint pursuant to the West Virginia Human Rights Act executes a written release in connection with the settlement of the claims made in the complaint, and the release is entered into by the party with the direct assistance of an attorney who has made an appearance on behalf of such complaining party, the release may be considered a knowing and voluntary waiver without regard to the requirements of subsections 3.2.e., 3.2.f., and 3.2.g.
W. Va. Code R. § 71-6-4 Waiver in Connection with Group Program
4.1. In addition to the requirements set forth in section 3, if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer must inform the individual in writing, in a manner calculated to be understood by the average individual eligible to participate, as to the following factors:
4.1.1. Any class, unit or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program;
4.1.2. The job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program;
4.1.3. The method and/or factors used or considered in arriving at the amount of consideration that is offered; and
4.1.4. The right to consider the agreement for a period of at least 45 days (instead of the 21-day period set forth in subsection 3.2.f. above).
W. Va. Code R. § 71-6-5 Burden of Proof on Waiver and Duress
5.1. In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth above have been met, the party asserting the validity of the waiver shall have the burden of proving as an affirmative defense that a waiver was knowing and voluntary pursuant to the above terms.
5.2. Even if the conditions set forth in this rule have been met, an individual may show that a waiver is involuntary because it was executed as a result of a threat, intimidation or coercion on the part of the employer. The individual shall have the burden of proving that the threat, intimidation or coercion was a determining factor in the individual's decision to execute the waiver.
W. Va. Code R. § 71-6-6 Waiver as a Defense
6.1. During the investigation of a complaint, a properly obtained waiver shall be considered as evidence that a violation of the HRA has not occurred. If a probable cause determination is made despite the presence of a properly obtained waiver, the employer shall be permitted to raise the waiver as an affirmative defense in its answer to the complaint. Upon a finding of probable cause to believe that unlawful discrimination has occurred, the Commission may prosecute a complaint in its own name regardless of a waiver.
W. Va. Code R. § 71-6-7 Limit on Confidentiality Provision
7.1. Any confidentiality or other condition restricting the right of an individual to discuss the terms of a waiver shall be considered null and void and of no effect in regard to communication between an individual and the Human Rights Commission or an individual and similarly situated employees.
W. Va. Code R. § 71-6-8 Scope of Coverage
8.1. The conditions of waiver set forth in this rule are declared to have equal applicability in regard to complaints involving alleged discrimination in employment, housing and public accommodation.
Series 07 The Definition of Employer Under the West Virginia Human Rights Act
W. Va. Code R. § 71-7-1 General
1.1. Scope. -- This legislative rule interprets and implements the provisions of the West Virginia Human Rights Act, particularly W. Va. Code §16B-17-3(d) related to the definition of employer, and is to assist all persons in understanding their rights, obligations, and duties under the law. The West Virginia Code is available in public libraries and on the Legislature’s web page, http://www.wvlegislature.gov.
1.2. Authority. -- W. Va. Code §16B-17-8(h).
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-7-2 Definitions; Manner of Calculating
2.1. “Employer” mean the state, or any political subdivision of the state, and any person employing 12 or more persons within the state for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year: Provided, That such terms shall not be taken, understood, or construed to include a private club.
2.2. For purposes of this rule, the number of employees shall be calculated by including all persons with whom the employer has an employment relationship, whether or not the person is performing tasks or receiving compensation from the employer on a particular day. Individuals employed by his or her parent, spouse, or child shall not be counted.
Series 08 Rules for the Processing of Complaints and for Administrative Proceedings Under the West Virginia Fair Housing Act
W. Va. Code R. § 71-8-1 General
1.1. Scope. -- These regulations contain the procedures established by the West Virginia Human Rights Commission, pursuant to W. Va. Code §16B-18-11, for investigation and conciliation of complaints alleging discriminatory housing practices because of race, color, religion, sex or national origin, handicap or familial status; and for administrative proceedings before an administrative law judge adjudicating charges issued under W. Va. Code §16B-18-11.
1.2. Authority. -- W. Va. Code §16B-17-8(h), §16B-18-8, §16B-18-9, §16B-18-13, and §16B-18-20.
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Liberal Construction. -- These regulations shall be liberally construed to permit the commission to discharge its statutory functions and to secure just and expeditious determination of all matters before the West Virginia Human Rights Commission.
1.6. Fair and Expeditious Proceedings. -- Hearings under these rules shall be conducted as expeditiously and inexpensively as possible, consistent with the needs and rights of the parties to obtain a fair hearing and complete record. In processing complaints and conducting hearings, the commission will reasonably accommodate persons with disabilities.
1.7. Deviation from Regulations. -- In special cases, where good cause appears and not contrary to statute, the commission or its hearing examiner may permit deviation from these regulations insofar as it may find compliance therewith to be impractical or unnecessary.
1.8. Practice Where Regulations do not Govern. -- In situations where these regulations do not apply, the commission or its hearing examiner shall exercise discretion in accordance with traditional notions of fairness and justice.
1.9. Severability. -- If any of these regulations are held invalid, it shall not be construed to invalidate any of the other provisions of these regulations not otherwise affected.
1.10. Availability of Regulations. -- The regulations of the commission shall be on file in the office of the Secretary of State.
1.11. Additional Copies. -- Additional copies of the regulations of commission shall be available to the general public at the offices of the Secretary of State.
1.12. Delegation of Powers and Duties. -- Except where contrary to law, the commission may delegate any of the powers and duties of the commission to the executive director, hearing examiner, or other employees or agents of the commission.
1.13. Effect of amendments to the Act -- In the event that the Human Rights Act, West Virginia Code, Chapter 16B, Article 17, is amended by the Legislature, these rules and regulations will automatically be amended to conform to such amendments.
W. Va. Code R. § 71-8-2 Definitions; Time Computations; Service and Filing
2.1. Definitions. As used in this part:
2.1.1. Aggrieved person includes any person who:
2.1.1.a. Claims to have been injured by a discriminatory housing practice; or
2.1.1.b. Believes that such person will be injured by a discriminatory housing practice that is about to occur.
2.1.2. Attorney general means the deputy attorney for the civil rights division or his or her designate.
2.1.3. Charge means the statement of facts issued under section 6.2. of these regulations upon which the commission has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur.
2.1.4. Commission, unless otherwise specified, means the executive director of the West Virginia Human Rights Commission or his or her designate.
2.1.5. Commissioners means the duly appointed members of the West Virginia Human Rights Commission.
2.1.6. Complainant means the person who files a complaint under this part.
2.1.7. Conciliation means the attempted resolution of issues raised by a complaint, or by the investigation of a complaint, through informal negotiations involving the aggrieved person, the respondent, and the commission.
2.1.8. Conciliation agreement means a written agreement setting forth the resolution of the issues in conciliation.
2.1.9. Discriminatory housing practice means an act that is unlawful under the West Virginia Fair Housing Act, W. Va. Code §16B-18-1, et seq.
2.1.10. Dwelling means any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, or any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.
2.1.11. Party means a person or agency named or admitted as a party to a proceeding. Party includes an aggrieved person who intervenes under section 8.1. of these regulations.
2.1.12. Person includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives, mutual companies, joint-stock companies. trusts, unincorporated organizations, trustees, trustees in cases under Title 11 of the United States Code, receivers and fiduciaries.
2.1.13. Personal service means handing a copy of the document to the person to be served or leaving a copy of the document with a person of suitable age and discretion at the place of business, residence or usual place of abode of the person to be served.
2.1.14. Receipt of notice means the day that personal service is completed by handing or delivering a copy of the document to an appropriate person or the date that a document is delivered by certified mail.
2.1.15. Respondent means:
2.1.15.a. The person or other entity accused in a complaint of a discriminatory housing practice; and
2.1.15.b. Any other person or entity identified in the course of investigation and notified as required under section 3.9. of these regulations.
2.1.16. To rent includes to lease, to sublease, to let, and otherwise to grant for consideration the right to occupy premises not owned by the occupant.
2.2. Time computations
2.2.1. In general. In computing time under this part, the time period begins the day following the act, event, or default and includes the last day of the period, unless the last day is a Saturday, Sunday, or legal holiday observed by the federal or state government, in which case the time period includes the next business day. When the prescribed time period is seven days or less, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation.
2.2.2. Modification of time periods. Except for time periods required by statute, the administrative law judge may enlarge or reduce any time period required under this part where necessary to avoid prejudicing the public interest or the rights of the parties.
2.2.3. Entry of orders. In computing any time period involving the date of the issuance of an order or decision by an administrative law judge, the date of issuance is the date the order or decision is served.
2.2.4. Computation of time for delivery by mail
2.2.4.a. Documents are not filed until received by the commission. However, when documents are filed by mail, three days shall be added to the prescribed time period.
2.2.4.b. Service is effected at the time of mailing.
2.2.4.c. When a party has the right or is required to take an action within a prescribed period after the service of a document upon the party, and the document is served by mail, three days shall be added to the prescribed period.
2.3. Service and filing
2.3.1. Generally. Copies of all filed documents shall be served on all parties of record. All filed documents shall clearly designate the docket number, if any, and title of the proceeding. All documents to be filed shall be delivered or mailed to the West Virginia Human Rights Commission, 1321 Plaza East, Room 104/106, Charleston, West Virginia 25301.
2.3.2. By parties. Parties shall file all documents with the commission, with a copy to all other parties of record. Service of documents upon any party may be made by personal service or by mailing a copy to the last known address. When a party is represented by an attorney, service shall be made upon the attorney. The person serving the document shall certify to the manner and date of service.
2.3.3. By the administrative law judges. Administrative law judges shall serve all notices, orders, decisions and all other documents by mail to the last known address.
W. Va. Code R. § 71-8-3 Complaints
3.1. Submission of information. The commission will receive information concerning alleged discriminatory housing practices from any person. Where the information constitutes a complaint within the meaning of the West Virginia Fair Housing Act and these rules and is furnished by an aggrieved person, it will be considered to be filed under section 3.6. of these regulations. Where additional information is required for purposes of perfecting a complaint, the commission will advise what additional information is needed and will provide appropriate assistance in the filing of the complaint.
3.2. Who may file complaints. Any aggrieved person, the commission or the attorney general may file a complaint no later than one year after an alleged discriminatory housing practice has occurred or terminated. The complaint may be filed with the assistance of an authorized representative of an aggrieved person, including any organization acting on behalf of an aggrieved person.
3.3. Persons against whom complaints may be filed.
3.3.1. A complaint may be filed against any person alleged to be engaged, to have engaged, or to be about to engaged in a discriminatory housing practice.
3.3.2. A complaint may also be filed against any person who directs or controls, or has the right to direct or control, the conduct of another person with respect to any aspect of the sale, rental, advertising or financing of dwellings or the provision of brokerage services relating to the sale or rental of dwellings if that other person acting within the scope of his or her authority as employee or agent of the directing or controlling person, is engaged, has engaged, or is about to engage, in a discriminatory housing practice.
3.4. Where to file complaints.
3.4.1. Aggrieved persons may file complaints in person with, or by mail to the West Virginia Human Rights Commission, 1321 Plaza East, Room 104/106, Charleston, West Virginia 25301.
3.4.2. Aggrieved persons may provide information to be contained in a complaint by telephone to the commission. The commission will reduce information provided by telephone to writing on the prescribed complaint form and send the form to the aggrieved person to be signed and affirmed as provided in subsection 3.5.1. of these regulations.
3.5. Form and content of complaint.
3.5.1. Each complaint must be in writing and must be signed and affirmed by the aggrieved person filing the complaint or, if the complaint is filed by the commission or the attorney general, by an authorized agent thereof. The signature and affirmation may be made at any time during the investigation. The affirmation shall state: "Having been duly sworn, I depose and say that I have read the foregoing complaint and know the contents thereof, and that it is true and correct; except as to the matters therein stated upon information and belief, which matters I believe to be true.
3.5.2. Complaint forms will be available in the office of the West Virginia Human Rights Commission. Notwithstanding any requirement for use of a prescribed form, the commission will accept any written statement which substantially sets forth the allegations of a discriminatory housing practice under the West Virginia Fair Housing Act as a Fair Housing Act complaint. Personnel in the commission offices will provide appropriate assistance in filling out forms and in filing a complaint.
3.5.3. Each complaint must contain substantially the following information:
3.5.3.a. The name and address of the aggrieved person.
3.5.3.b. The name and address of the respondent.
3.5.3.c. A description and the address of the dwelling which is involved, if appropriate.
3.5.3.d. A concise statement of the facts, including pertinent dates, constituting the alleged discriminatory housing practice.
3.6. Date of filing of complaint.
3.6.1. Except as provided in subsection 3.6.2., a complaint is filed when it is received by the commission in a form that reasonably meets the standards of section 3.5.
3.6.2. The commission may determine that a complaint is filed for the purposes of the one-year period for the filing of complaints, upon the submission of written information (including information provided by telephone and reduced to writing by an employee of the commission) identifying the parties and describing generally the alleged discriminatory housing practice.
3.6.3. Where a complaint alleges a discriminatory housing practice that is continuing, as manifested in a number of incidents of such conduct, the complaint will be timely if filed within one year of the last alleged occurrence of that practice.
3.7. Amendment of complaint. Complaints may be reasonably and fairly amended at any time. Such amendments may include, but are not limited to, amendments to cure technical defects or omissions, including failure to sign or affirm a complaint, to clarify or amplify the allegations in a complaint, or to join additional or substitute respondents. Except for the purposes of notifying respondents under section 3.9. of these regulations, amended complaints will be considered as having been made as of the original filing date.
3.8. Service of notice on aggrieved person. Upon the filing of a complaint, the commission will notify, by certified mail or personal service, each aggrieved person on whose behalf the complaint was filed. The notice will:
3.8.1. Acknowledge the filing of the complaint and state the date that the complaint was accepted for filing.
3.8.2. Include a copy of the complaint.
3.8.3. Advise the aggrieved person of the time limits applicable to complaint processing and of the procedural rights and obligations of the aggrieved person under these regulations.
3.8.4. Advise the aggrieved person of his or her right to commence a civil action under W. Va. Code §16B-18-14 in an appropriate county circuit court not later than two years after the occurrence or termination of the alleged discriminatory housing practice. The notice will state that the computation of this two-year period excludes any time during which a proceeding is pending under these regulations with respect to a complaint or charge based on the alleged discriminatory housing practice.
3.8.5. Advise the aggrieved person that in the event he or she files a civil action under W. Va. Code §16B-18-14, he or she has a duty to notify the commission of such action in writing.
3.8.6. Advise the aggrieved person that retaliation against any person because he or she made a complaint or testified, assisted, or participated in an investigation or conciliation under these regulations, is a discriminatory housing practice that is prohibited under W. Va. Code §16B-18-7.
3.9. Notification of respondent; joinder of additional or substitute respondents.
3.9.1. Within ten days of the filing of a complaint under section 3.6. of these regulations or the filing of an amended complaint under section 3.7. of these regulations, the commission will serve a notice on each respondent by certified mail or by personal service. A person who is not named as a respondent in a complaint, but who is identified in the course of the investigation as a person who is alleged to be engaged, to have engaged, or to be about to engage in the discriminatory housing practice upon which the complaint is based may be joined as an additional or substitute respondent by service of a notice on the person under this section within ten days of the identification.
3.9.2. The notice will identify the alleged discriminatory housing practice upon which the complaint is based, and include a copy of the complaint.
3.9.3. The notice will state the date that the complaint was accepted for filing.
3.9.4. The notice will advise the respondent of the time limits applicable to complaint processing under this part and of the procedural rights and obligations of the respondent under these regulations, including the opportunity to submit an answer to the complaint within ten days of the receipt of the notice.
3.9.5. The notice will advise the respondent of the aggrieved person's right to commence a civil action under W. Va. Code §16B-18-14 in an appropriate county circuit court, not later than two years after the occurrence or termination of the alleged discriminatory housing practice. The notice will state that the computation of this two-year period excludes any time during which a proceeding is pending under these regulations with respect to a complaint or charge based on the alleged discriminatory housing practice.
3.9.6. If the person is not named in the complaint, but is being joined as an additional or substitute respondent, the notice will explain the basis for the commission's belief that the joined person is properly joined as a respondent.
3.9.7. The notice will advise the respondent that retaliation against any person because he or she made a complaint or testified, assisted or participated in an investigation or conciliation under this part or an administrative proceeding under these regulations is a discriminatory housing practice that is prohibited under W. Va. Code §16B-18-16.
3.10. Answer to complaint.
3.10.1. The respondent may file an answer not later than ten days after receipt of the notice described in section 3.9. of these regulations. The respondent may assert any defense that might be available to a defendant in a court of law. The answer must be signed and affirmed by the respondent. The affirmation must state: "Having been duly sworn, I depose and say that I have read the foregoing answer and know the contents thereof, and that it is true and correct: except as to the matters therein stated upon information and belief, which matters I believe to be true."
3.10.2. An answer may be reasonably and fairly amended at any time during the investigation with the consent of the commission.
W. Va. Code R. § 71-8-4 Investigation Procedures
4.1. Investigations.
4.1.1. Upon the filing of a complaint under section 3.6. of these regulations, the commission will initiate an investigation. The purpose of an investigation are:
4.1.1.a. To obtain information concerning the events or transactions that relate to the alleged discriminatory housing practice identified in the complaint.
4.4.1.b. To document policies or practices of the respondent involved in the alleged discriminatory housing practice raised in the complaint.
4.4.1.c. To develop factual data necessary for the commission to make a determination under section 6.1. of these regulations whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, and to take other actions provided under this part.
4.1.2. The commission may initiate an investigation of housing practices to determine whether a complaint should be filed under section 3 of these regulations. Such investigations will be conducted in accordance with the procedures described herein.
4.2. Systemic processing. Where the commission determines that the alleged discriminatory practices contained in a complaint are pervasive or institutional in nature, or that the processing of the complaint will involve complex issues, novel questions of fact or law, or will affect a large number of persons, the commission may identify the complaint for systemic processing. This determination can be based on the face of the complaint or on information gathered in connection with an investigation. Systemic investigations may focus not only on documenting facts involved in the alleged discriminatory housing practice that is the subject of the complaint but also on review of other policies and procedures related to matters under investigation, to make sure that they also comply with the nondiscrimination requirements of the West Virginia Fair Housing Act.
4.3. Conduct of investigation.
4.3.1. In conducting investigations under this part, the commission will seek the voluntary cooperation of all persons to obtain access to premises, records, documents, individuals, and other possible sources of information; to examine, record, and copy necessary materials; and to take and record testimony or statements of persons reasonably necessary for the furtherance of the investigation.
4.3.2. The commission and the respondent may conduct discovery in aid of the investigation by the same methods and to the same extent that parties may conduct discovery in an administrative proceeding under sections 10 and 11 of these rules.
4.4. Cooperation of federal, state and local agencies. The commission, in processing West Virginia Fair Housing Act complaints, may seek the cooperation and utilize the services of federal, state or local agencies, including any agency having regulatory or supervisory authority over financial institutions.
4.5. Completion of investigation.
4.5.1. The investigation will remain open until the reasonable cause determination is made under section 6.1 of these regulations, or a conciliation agreement is executed and approved under section 5.2. of these regulations, or the matter is filed and fully adjudicated in a circuit court pursuant to W. Va. Code §16B-18-14(a)(1)(A).
4.5.2. If during the pendency of the investigation, the complainant initiates a civil action in circuit court pursuant to W. Va. Code §16B-18-14(a)(1)(A), the complainant shall immediately notify the commission of the filing of such action, and the commission shall suspend the investigation.
4.5.3. Unless it is impracticable to do so, or unless the investigation shall have been suspended pursuant to subsection 4.5.2., the commission will complete the investigation of the alleged discriminatory housing practice within 100 days of the filing of the complaint. If the commission is unable to complete the investigation within the 100-day period, the commission will notify the aggrieved person and the respondent, by certified mail or personal service, of the reasons for the delay.
4.6. Final investigative report.
4.6.1. At the end of each investigation under this part, the commission will prepare a final investigative report. The investigative report will contain:
4.6.1.a. The names and dates of contacts with witnesses, except that the report will not disclose the names of witnesses that request anonymity. The commission, however, may be required to disclose the names of such witnesses in the course of an administrative hearing under these regulations or a civil action under the West Virginia Fair Housing Act;
4.6.1.b. A summary and the dates of correspondence and other contacts with the aggrieved person and the respondent;
4.6.2.c. A summary description of other pertinent records;
4.6.2.d. A summary of witness statements; and
4.6.2.e. Answers to interrogatories.
4.6.2. A final investigative report may be amended at any time if additional evidence is discovered.
4.6.3. Notwithstanding the prohibitions and requirements with respect to disclosure of information contained in section 5.6. of these regulations, the commission will make information derived from an investigation, including the final investigative report, available to the aggrieved person and the respondent. Following the completion of investigation, the commission shall notify the aggrieved person and the respondent that the final investigation report is complete and will be provided upon request.
W. Va. Code R. § 71-8-5 Conciliation Procedures
5.1. Conciliation.
5.1.1. During the period beginning with the filing of the complaint and ending with the filing of a charge or the dismissal of the complaint, the commission will, to the extent feasible, attempt to conciliate the complaint.
5.1.2. In conciliating a complaint, the commission will attempt to achieve a joint resolution of the complaint and to obtain assurances that the respondent will satisfactorily remedy any violations of the rights of the aggrieved person, and take such action as will assure the elimination of discriminatory housing practices, or the prevention of their occurrence, in the future.
5.1.3. Generally, officers, employees, and agents of the commission engaged in the investigation of a complaint under this part will not participate or advise in the conciliation of the same complaint or in any factually related complaint. Where the rights of the aggrieved party and the respondent can be protected and the prohibitions with respect to the disclosure of information can be observed, the investigator may suspend fact finding and engage in efforts to resolve the complaint by conciliation.
5.2. Conciliation agreement.
5.2.1. The terms of a settlement of a complaint will be reduced to a written conciliation agreement. The conciliation agreement shall seek to protect the interests of the aggrieved person, other persons similarly situated, and the public interest. The types of relief that may be sought for the aggrieved person are described in section 5.3. The provisions that may be sought for the vindication of the public interest are described in section 5.4.
5.2.2. The agreement must be executed by the respondent and the complainant. The agreement is subject to the approval of the commission, who will indicate approval by signing the agreement. The commission will approve an agreement and if the commission is the complainant, will execute the agreement, only if:
5.2.2.a. The complainant and the respondent agree to the relief accorded the aggrieved person;
5.2.2.b. The provisions of the agreement will adequately vindicate the public interest; and
5.2.2.c. If the commission is the complainant, all aggrieved persons named in the complaint are satisfied with the relief provided to protect their interests.
5.2.3. The commission may issue a charge under section 6.2. of these regulations if the aggrieved person and the respondent have executed a conciliation agreement that has not been approved by the commission.
5.3. Relief sought for aggrieved persons
5.3.1. The following types of relief may be sought for aggrieved persons in conciliation:
5.3.1.a. Monetary relief in the form of damages, including damages caused by humiliation or embarrassment, and attorney fees;
5.3.1.b. Other equitable relief including, but not limited to, access to the dwelling at issue, or to a comparable dwelling, the provision of services or facilities in connection with a dwelling, or specific relief; or
5.3.1.c. Injunctive relief appropriate to the elimination of discriminatory housing practices affecting the aggrieved person or other persons.
5.3.2. The conciliation agreement may provide for binding arbitration of the dispute arising from the complaint. Arbitration may award appropriate relief as described in subdivision 5.3.1.a. The aggrieved person and the respondent may, in the conciliation agreement, limit the types of relief that may be awarded under binding arbitration.
5.4. Provisions sought for the public interest The following are types of provisions may be sought for the vindication of the public interest:
5.4.1. Elimination of discriminatory housing practices.
5.4.2. Prevention of future discriminatory housing practices.
5.4.3. Remedial affirmative activities to overcome discriminatory housing practices.
5.4.4. Reporting requirements.
5.4.5. Monitoring and enforcement activities.
5.5. Termination of conciliation efforts.
5.5.1. The commission may terminate its efforts to conciliate the complaint if the respondent fails or refuses to confer with the commission; the aggrieved person or the respondent fail to make a good faith effort to resolve any dispute; or the commission finds, for any reason, that voluntary agreement is not likely to result.
5.5.2. Where the aggrieved person has commenced a civil action under a state or federal law seeking relief with respect to the alleged discriminatory housing practice, and the trial in the action has commenced, the commission will terminate conciliation unless the court specifically requests assistance from the commission.
5.6. Prohibitions and requirements with respect to disclosure of information obtained during conciliation.
5.6.1. Except as provided in subsections 5.6.2. and 4.6.3., nothing that is said or done in the course of conciliation under this part may be made public or used as evidence in a subsequent administrative hearing under these regulations or in civil actions under the West Virginia Fair Housing Act, without the written consent of the persons concerned.
5.6.2. Conciliation agreements shall be made public, unless the aggrieved person and respondent request nondisclosure and the commission determines that disclosure is not required to further the purposes of the West Virginia Fair Housing Act. Notwithstanding a determination that disclosure of a conciliation agreement is not required, the commission may publish tabulated descriptions of the results of all conciliation efforts.
5.7. Review of compliance with conciliation agreements.
The commission may, from time to time, review compliance with the terms of any conciliation agreement. Whenever the commission has reasonable cause to believe that a respondent has breached a conciliation agreement, the commission shall refer the matter to the attorney general with a recommendation for the filing of a civil action under the West Virginia Fair Housing Act, W. Va. Code §16B-18-15(a)(2), for the enforcement of the terms of the conciliation agreement.
W. Va. Code R. § 71-8-6 Issuance of Charge
6.1. Reasonable cause of determination.
6.1.1. If a conciliation agreement under section 5.2. of these regulations has not been executed by the complainant and the respondent, and approved by the commission, the commission, within the time limits set forth in subsection 6.1.4., shall determine whether, based on the totality of the factual circumstances known at the time of the decision, reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur. The reasonable cause determination will be based on the facts concerning the alleged discriminatory housing practice, provided by complainant and respondent and otherwise disclosed during the investigation. In making the reasonable cause determination, the commission shall consider whether the facts concerning the alleged discriminatory housing practice are sufficient to warrant the initiation of a civil action in court.
6.1.1.a. In all cases not involving the legality of local zoning or land use laws or ordinances:
6.1.1.a.1. If the commission determines that reasonable cause exists, the commission will immediately issue a charge under section 6.2. of these regulations on behalf of the aggrieved person, and shall notify the aggrieved person and the respondent of this determination by certified mail or personal service.
6.1.1.a.2. If the commission makes an initial determination that no reasonable cause exists, the commission shall issue a short and plain written statement of the facts upon which the commission has based its determination; and shall notify the aggrieved person and the respondent of the determination, and of the reconsideration procedures provided by section 6.4. of these regulations, which notice shall be by certified mail or personal service.
6.1.1.a.3. If a request for reconsideration is not filed within 10 days of notice to an aggrieved party of the commission's initial determination of no reasonable cause, or upon reconsideration pursuant to section 6.4. of these regulations the executive director determines that there is no reasonable cause, the commission shall make a final determination that no probable cause exists, and the commission shall: issue a short and plain written statement of the facts upon which the commission has based the no reasonable cause determination; dismiss the complaint; notify the aggrieved person and the respondent of the dismissal (including the written statement or facts) by certified mail or personal service; and make public disclosure of the dismissal.
6.1.2. If the commission determines that the matter involves the legality of local zoning or land use laws or ordinances, the commission, in lieu of making a determination regarding reasonable cause, shall refer the investigative materials to the attorney general for appropriate action under the West Virginia Fair Housing Act, W. Va. Code §16B-18-15, and shall notify the aggrieved person and the respondent of this action by certified mail or personal service.
6.1.3. The commission may not issue a charge under section 6.2. regarding an alleged discriminatory housing practice, if an aggrieved person has commenced a civil action under a state or federal law seeking relief with respect to the alleged discriminatory housing practice, and the trial in the action has commenced. If a charge may not be issued because of the commencement of such a trial, the commission will so notify the aggrieved person and the respondent by certified mail or personal service.
6.1.4. The commission shall make a reasonable cause determination within 100 days after filing of the complaint, unless it is impracticable to do so.
6.1.5. If the commission is unable to make the determination within the one hundred (100) day period specified in subsection 6.1.4., the commission will notify the aggrieved person and the respondent, by certified mail or personal service, of the reasons for the delay.
6.2. Issuance of charge.
6.2.1. A charge:
6.2.1.a. Shall consist of a short and plain written statement of the facts upon which the commission has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur;
6.2.1.b. Shall be based on the final investigative report; and
6.2.1.c. Need not be limited to facts or grounds that are alleged in the complaint.
6.2.2. Within three business days after the issuance of the charge, the commission shall assign the case to an administrative law judge for hearing pursuant to these regulations, and shall serve the charge and notifications in accordance with section 2.3. of these rules, and shall notify the attorney general of the filing of the charge.
6.3. Election of civil action or provision of administrative proceeding
6.3.1. If a charge is issued under section 6.2. of these regulations, a complainant (including the attorney general or the commission), a respondent, or an aggrieved person on whose behalf the complaint is filed may elect, in lieu of an administrative proceeding under these regulations, to have the claims asserted in the charge decided in a civil action under the West Virginia Fair Housing Act, W. Va. Code §16B-18-13(o).
6.3.2. The election must be made not later than 20 days after the receipt of service of the charge. The notice of the election must be filed with the commission and served on the attorney general, the respondent, and the aggrieved person on whose behalf the complaint was filed. The notification will be filed and served in accordance with section 2.3. of these regulations.
6.3.3. If an election is not made under this section, the commission will maintain an administrative proceeding based on the charge in accordance with the procedures set forth herein.
6.3.4. If an election is made under this section, the commission shall immediately notify and authorize the attorney general to commence and maintain a civil action seeking relief under the West Virginia Fair Housing Act, W. Va. Code §16B-18-13(o), on behalf of the aggrieved person in the appropriate circuit court. Such notification and authorization shall include transmission of the file in the case, including a copy of the final investigative report and the charge, to the attorney general.
6.4. Reconsideration of administrative dismissal. The following procedures shall apply whenever there is an initial determination of no reasonable cause, or when a complaint is otherwise dismissed, except when a complaint is dismissed by an administrative law judge or pursuant to a settlement reached by the parties or pursuant to a conciliation agreement between the commission and the respondent, in which cases these procedures do not apply:
6.4.1. An aggrieved person may apply to the commission, through its compliance director or such other person as the executive director may designate, for an administrative reconsideration of the dismissal of her/his complaint. Requests for reconsideration shall be in writing, shall state specifically the grounds relied on, may contain new evidence not previously considered by the commission and shall be filed at the commission office within ten days from the date of the aggrieved person's receipt of such copy.
6.4.2. The commission shall forward a copy of the request for administrative reconsideration of a dismissal and any material in support thereof to the respondent, who may respond thereto within ten days of receipt of such copy.
6.4.3. Within 20 days after receipt by the commission of the request for reconsideration, the matter will be referred to the commission's attorney, or such other person as the executive director may designate, who will consider any new evidence and secure new information as may be necessary and appropriate. The reconsideration shall be scheduled to be heard by the attorney or other designated person within 40 days after such referral.
6.4.4. The aggrieved person and respondent shall be given at least ten days' written notice of the time and place of the reconsideration. The notice shall be given by personal delivery or by certified mail, return receipt requested, and shall advise the aggrieved person that she/he must be present at the reconsideration and may be accompanied by counsel.
6.4.5. If after having received proper notice, the aggrieved person does not appear at the reconsideration, the aggrieved person shall be deemed to have waived all rights to reconsideration unless it is shown to the satisfaction of the executive director or the chairperson that the failure to appear was due to circumstances beyond the aggrieved person's control.
6.4.6. The commission's attorney or other designated person shall preside at the reconsideration and shall be provided with all information in the commission file pertaining to the complaint under reconsideration. The presiding person, after considering the evidence, shall file a report and recommendation with the executive director which shall recommend that the dismissal of the complaint be upheld, reversed, or modified or that the complaint be remanded for further investigation. The report shall be filed with the executive director within 15 days after the reconsideration.
6.4.7. If upon consideration of the report the executive director determines that further investigation is warranted, further investigation shall be conducted.
6.4.8. The executive director shall make a final determination as to whether there is reasonable cause.
6.5. Prompt judicial action
6.5.1. If at any time following the filing of a complaint, the commission concludes that prompt judicial action is necessary to carry out the purposes of these regulations, the commission may authorize the attorney general to commence a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint. The commencement of a civil action by the attorney general under this section will not affect the initiation or continuation of proceedings under this part or administrative proceedings under these regulations.
6.5.2. If the commission has reason to believe that a basis exists for the commencement of proceedings against the respondent under W. Va. Code §16B-18-15, or proceedings by any governmental licensing or supervisory authorities, the commission shall transmit the information upon which that belief is based to the attorney general and to other appropriate authorities.
W. Va. Code R. § 71-8-7 Administrative Law Judge
7.1. Designation. Proceedings under this part shall be presided over by an administrative law judge who shall be appointed by the executive director of the West Virginia Human Rights Commission. An administrative law judge under these regulations may be the same person designated to serve as a Human Rights Commission hearing examiner under the West Virginia Human Rights Act and its implementing regulations.
7.2. Authority. The administrative law judge shall have all powers necessary to conduct fair and impartial hearings including, but not limited to, the power:
7.2.1. To conduct hearings in accordance with these rules.
7.2.2. To administer oaths and affirmations and examine witnesses.
7.2.3. To issue subpoenas.
7.2.4. To rule on offers of proof and receive evidence.
7.2.5. To take depositions or have depositions taken when the ends of justice would be served.
7.2.6. To regulate the course of the hearing and the conduct of parties and their counsel.
7.2.7. To hold conferences for the settlement or simplification of the issues by consent of the parties.
7.2.8. To dispose of motions, procedural requests, and similar, matters.
7.2.9. To make decisions as provided herein.
7.2.10. To exercise such powers vested in the commission as are necessary and appropriate for the purpose of the hearing and conduct of the proceeding.
7.3. Disqualification.
7.3.1. Disqualification. If an administrative law judge finds that there is a basis for his or her disqualification in a proceeding, the administrative law judge shall withdraw from the proceeding. Withdrawal is accomplished by entering a notice in the record and by providing a copy of the notice to the executive director of the commission.
7.3.2. Motion for recusal. If a party believes that the presiding administrative law judge should be disqualified in a proceeding for any reason, the party may file a motion to recuse with the administrative law judge. The motion shall be supported by an affidavit setting forth the alleged grounds for disqualification. The administrative law judge shall rule on the motion. If the administrative law judge denies the motion, the administrative law judge shall incorporate a written statement of the reasons for the denial in the record.
7.3.3. Redesignation of administrative law judge. If an administrative law judge is disqualified, the executive director shall designate another administrative law judge to preside over further proceedings.
W. Va. Code R. § 71-8-8 Parties
8.1. In general.
8.1.1. Parties to the proceeding include:
8.1.1.a. The commission. The commission files the charge seeking appropriate relief for an aggrieved party and vindication of the public interest.
8.1.1.b. Respondent. A respondent is a person named in the charge against whom relief is sought.
8.1.1.c. Intervenors. Any aggrieved person may file a request for intervention. Intervention shall be permitted if the request is timely, and:
8.1.1.c.1. The intervenor is the aggrieved person on whose behalf the charge is issued.
8.1.1.c.2. The intervenor is an aggrieved person who claims an interest in the property or transaction that is the subject of the charge and the disposition of the charge may as a practical matter impair or impede the aggrieved person's ability to protect that interest, unless the aggrieved person is adequately represented by the existing parties.
8.1.2. Rights of parties. Each party may appear in person, be represented by counsel, examine or cross-examine witnesses, introduce documentary or other relevant evidence into the record, and request the issuance of subpoenas.
8.1.3. Amicus curiae. Briefs of amicus curiae may be permitted at the discretion of the administrative law judge. Such participants are not parties to the proceeding.
8.2. Representation.
8.2.1. Representation of the commission. The commission shall be represented by the attorney general or his/her designee.
8.2.2. Representation of other parties. Other parties may be represented as follows:
8.2.2.a. Individuals may appear on their own behalf.
8.2.2.b. A member of a partnership may represent the partnership.
8.2.2.c. An officer of a corporation, trust or association may represent the corporation, trust or association.
8.2.2.d. An officer or employee of any governmental unit, agency or authority may represent that unit, agency or authority.
8.2.2.e. An attorney authorized to practice law in the State of West Virginia. The attorney's representation that he or she is authorized to practice law in West Virginia courts is sufficient evidence of the attorney's qualifications under this section, unless otherwise ordered by the administrative law judge.
8.2.3. Notice of appearance. Each attorney or other representative of a party shall file a notice of appearance. The notice must indicate the party of whose behalf the appearance is made and the address at which such attorney or representative can be served. Any individual acting in a representative capacity may be required by the administrative law judge to demonstrate authority to act in that capacity.
8.2.4. Withdrawal. An attorney or other representative of a party must file a written notice of intent before withdrawing from participation in the proceeding.
8.3. Standards of conduct.
8.3.1. In general. All persons appearing in proceedings under this part shall act with integrity and an ethical manner.
8.3.2. Exclusion. The administrative law judge may exclude parties or their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violations of the prohibitions against ex parte communications. If an attorney is suspended or barred from participation in a proceeding by an administrative law judge, the administrative law judge shall include in the record the reasons for the action. An attorney that is suspended or barred from participation may appeal to the executive director of the commission. The proceeding will not be delayed or suspended pending disposition on such appeal, except that the administrative law judge shall suspend the proceeding for a reasonable time to enable the party to obtain another attorney.
W. Va. Code R. § 71-8-9 Pleadings and Motions
9.1. In general.
9.1.1. Form. Every pleading, motion, brief or other document shall contain a caption setting forth the title of the proceeding, the docket number, and the designation of the type of document (e.g., charge, answer or motion to dismiss).
9.1.2. Signature. Every pleading, motion, brief or other document filed by a party shall be signed by the party, the party's representative, or the attorney representing the party, and must include the signer's address and telephone number. The signature constitutes a certification that the signer has read the document, that to the best of the signer's knowledge, information and belief there is good ground to support the document, and that it is not interposed for delay.
9.1.3. Timely filing. The administrative law judge may refuse to consider any motion or other pleading that is not filed in a timely fashion and in compliance with this part.
9.2. The charge.
9.2.1. Filing and service. Within three days after the issuance of a charge, the commission shall file the charge and serve copies (with the additional information required under subsection 9.2.2.) on the respondent and the aggrieved person on whose behalf the complaint was filed.
9.2.2. Contents. The charge shall consist of a short and plain written statement of the facts upon which the commission has found reasonable cause to believe that a discriminatory housing practice has occurred or is about to occur. The following notifications shall be served with the charge:
9.2.2.a. The notice shall state that a complainant (including the commission, if the commission filed the complaint), a respondent, or an aggrieved person on whose behalf the complaint was filed may elect to have the claims asserted in the charge decided in a civil action under W. Va. Code §16B-18-13(o) of the Act in lieu of an administrative proceeding under these regulations. The notice shall state that the election must be made not later than 20 days after the receipt of the service of the charge. Where the commission is the complainant, the executive director must make the election not later than 20 days after the service of the charge. The notice shall state that the notification of the election must be served on the commission, the respondent, the aggrieved party on whose behalf the complaint was filed and the attorney general.
9.2.2.b. The notice shall state that if no person timely elects under section 6.3. to have the claims asserted in the charge decided in a civil action under W. Va. Code §16B-18-13(o) of the Act, an administrative proceeding will be conducted. The notice shall state that if an administrative hearing is conducted:
9.2.2.b.1. The parties will have an opportunity for a hearing.
9.2.2.b.2. The respondent will have an opportunity to file an answer to the charge within 30 days of the date of service of the charge.
9.2.2.b.3. The aggrieved person may participate as a party to the administrative proceeding by filing a timely request for intervention.
9.2.3. The notice shall state that if at any time following the service of the charge on the respondent, the respondent intends to enter into a contract, sale, encumbrance, or lease with any person regarding the property that is the subject of the charge, the respondent must provide a copy of the charge to the person before the respondent and the person enter into the contract, sale, encumbrance or lease.
9.3. Answer to charge. Within the 30 days after the service of the charge, a respondent contesting material facts alleged in a charge or contending that the respondent is entitled to judgement as a matter of law shall file an answer to the charge. An answer shall include:
9.3.1. A statement that the respondent admits, denies, or does not have and is unable to obtain sufficient information to admit or deny, each allegation made in the charge. A statement of lack of information shall have the effect of a denial. Any allegation that is not denied shall be deemed to be admitted.
9.3.2. A statement of each affirmative defense and a statement of facts supporting each affirmative defense.
9.4. Time frame orders. Following the expiration of 30 days after the service of a charge, the administrative law judge shall issue a time frame order, setting forth a schedule for discovery, motions, prehearing memoranda and an evidentiary hearing, which order shall be served upon the parties, the complainant and each aggrieved person.
9.5. Request for intervention. Upon timely application, any aggrieved person may file a request for intervention to participate as a party to the proceeding. Requests for intervention submitted within 30 days after the filing of the charge shall be considered to be timely filed.
9.6. Amendments and supplemental pleadings.
9.6.1. Amendments.
9.6.1.a. By right. The commission may amend its charge once as a matter of right prior to filing of the answer.
9.6.1.b. By leave. Upon such conditions as are necessary to avoid prejudicing the public interest and the rights of the parties, the administrative law judge may allow amendments to pleadings upon motion of the party.
9.6.1.c. Conformance to the evidence. When issues not raised by the pleadings are reasonably within the scope of the original charge and have been tried by the express or implied consent of the parties, the issues shall be treated in all respects as if they had been raised in the pleadings and amendments may be made as necessary to make the pleading conform to evidence.
9.6.2. Supplemental pleadings. The administrative law judge may, upon reasonable notice, permit supplemental pleadings concerning transactions, occurrences or events that have happened or been discovered since the date of the pleadings and which are relevant to any of the issues involved.
9.7. Motions.
9.7.1. Any application for an order or other request shall be made by a motion which, unless made during an appearance before the administrative law judge, shall be made in writing. All parties shall be given a reasonable opportunity to respond to written or oral motions or requests.
9.7.2. Within five days after a written motion is served, any party to the proceeding may file an answer in support of, or in opposition to the motion.
9.7.3. The administrative law judge may order oral argument on any motion. §71-8-l0. Discovery.
10.1. In general. The following actions govern discovery in aid of administrative proceedings under these regulations. Except for time periods stated in these rules, to the extent that these rules conflict with discovery procedures in the West Virginia Rules of Civil Procedure apply.
10.2. Scope.
10.2.1. The parties are encouraged to engage in voluntary discovery procedures. Discovery shall be conducted as expeditiously and inexpensively as possible, consistent with the needs of all parties to obtain relevant evidence. Unless otherwise ordered by the administrative law judge, the parties may obtain discovery regarding any matter, not privileged, which is or may be relevant to the subject matter involved in the proceeding, including the existence, description, nature, custody, condition, and location of documents or persons having knowledge of any discoverable matter. It is not grounds for objection that information sought will not be admissible if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
10.2.2. For the purposes of obtaining discovery from a non-intervening aggrieved person, the term "party" as used in these rules regarding discovery includes the aggrieved person on whose behalf the charge was issued.
10.3. Depositions. Depositions may be taken by agreement of the parties or upon order of the administrative law judge. Depositions may be taken before any person having the power to administer oaths.
10.4. Use of deposition at hearings.
10.4.1. In general. At the hearing, any part or all of a deposition, so far as it is admissible under the West Virginia Rules of Evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice of the taking of the deposition, in accordance with the following provisions:
10.4.1.a. Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness.
10.4.1.b. The deposition of expert witnesses, may be used by any party for any purpose, unless the administrative law judge rules that such use is unfair or a violation of due process.
10.4.1.c. The deposition of a party or of anyone who at the time of the taking of the deposition was an officer, director, or duly authorized agent of a public or private corporation, partnership, or association that is a party, may be used by any other party for any purpose.
10.4.1.d. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the administrative law judge finds:
10.4.1.d.1. That the witness is dead;
10.4.1.d.2. That the witness is outside of the state or more than 100 miles from the place of hearing, unless it appears that the absence of the witness was procured by the party offering the deposition;
10.4.1.d.3. That the witness is unable to attend to testify because of age, sickness, infirmity, or imprisonment:
10.4.1.d.4. That the party offering the deposition has been unable to procure the attendance of the witness by subpoena: or
10.4.1.d.5. Whenever exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open hearing, to allow the deposition to be used.
10.4.2. If a part of a deposition is offered in evidence by a party, any other party may require the party to introduce all of the deposition that is relevant to the part introduced. Any party may introduce any other part of the deposition.
10.4.3. Substitution of parties does not affect the right to use depositions previously taken. If a proceeding has been dismissed and another proceeding involving the same subject matter is later brought between the same parties or their representatives or successors in interest, all depositions lawfully taken in the former proceeding may be used in the latter proceeding.
10.4.4. Objections to admissibility. Except as provided in this paragraph, objection may be made at the hearing to receiving in evidence any deposition or part of a deposition for any reason that would require the exclusion of the evidence if the witness were present and testifying.
10.4.4.a. Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not waived by failure to make them before or during the taking of the deposition unless the basis of the objection is one which might have been obviated or removed if presented at that time.
10.4.4.b. Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed or cured if promptly presented, are waived unless reasonable objection is made at the taking of the deposition.
10.4.4.c. Objections to the form of written interrogatories are waived, unless served in writing upon the party propounding the interrogatories.
10.5. Written interrogatories.
10.5.1. Written interrogatories to parties. Any party may serve on any other party written interrogatories to be answered by the party served. If the party served is a public or private corporation, a partnership, an association, or a governmental agency, the interrogatories may be answered by any authorized officer or agent who shall furnish such information as may be available to the party. A party may serve not more than 40 written interrogatories on another party without an order of the administrative law judge.
10.5.2. Responses to written interrogatories. Each interrogatory shall be answered separately and fully in writing under oath or affirmation, unless the party objects to the interrogatory. If a party objects to an interrogatory, the response shall state the reasons for the objection in lieu of an answer. The answer and objections shall be signed by the person making them, except that objections may be signed by the counsel for the party. The party upon whom the interrogatories were served shall serve copy of the answers and objections upon all parties within 20 days after service of the interrogatories.
10.6. Production of documents and other evidence. Any party may serve on any other party a request to produce documents or things. Within 20 days of the service of the request, the party upon whom the request is served shall serve a written response on the party submitting the request, which response shall with regard to each request:
10.6.1. Refer to the request and enclose the documents which are responsive to such request.
10.6.2. Make objection to the request and state the reason for the objection.
10.7. Entry upon land for inspection and other purposes; and physical and mental examinations.
10.7.1. In general Any party may serve on any other party a request to:
10.7.1.a. Permit the party making the request, or a person acting on the party's behalf, to inspect and copy any designated documents, or to inspect and copy, test, or sample any tangible things that are in the possession, custody, or control of the party upon whom the request is served;
10.7.1.b. Permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, photographing, testing, or other purposes stated in subdivision 10.7.1.a.; or
10.7.1.c. Submit to a physical or mental examination by a physician.
10.7.2. The request shall:
10.7.2.a. Set forth the items to be inspected by individual item or by category of items;
10.7.2.b. Describe each item or category with reasonable particularity;
10.7.2.c. Specify a reasonable time, place and manner for making the inspection and performing the related acts; and
10.7.2.d. Specify the time, place, manner, conditions, and scope of the physical or mental examination, and the person or persons who will make the examination. A report of the examining physician shall be made in accordance with Rule 35(b) of the West Virginia Rules of Civil Procedure.
10.7.3. Response to request Within 20 days of the service of the request, the party upon whom the request is served shall serve a written response on the party submitting the request. The response shall state, with regard to each item or category:
10.7.3.1. That inspection and related activities will be permitted as requested; or
10.7.3.2. That objection is made to the request in whole or in part. If an objection is made, the response must state the reasons for the objection.
10.8. Supplementation of responses.
10.8.1. In general. A party who responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information acquired after the response was made except:
10.8.1.a. A party is under a duty to timely supplement responses with respect to any question directly addressed to:
10.8.1.a.1. The identity and location of persons having knowledge of discoverable matters; and
10.8.1.a.2. The identity of each person expected to be called as an expert witness at the hearing, the subject matter on which the expert witness is expected to testify, and the substance of the testimony.
10.8.1.a.3. A party is under a duty to timely amend a previous response if the party later obtains information upon the basis of which:
10.8.1.a.3.A. The party knows the response was incorrect when made; or
10.8.1.a.3.B. The party knows the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is, in substance, a knowing concealment.
10.8.2. By order or agreement.
A duty to supplement responses may be imposed by order of the administrative law judge or by agreement of the parties.
10.9. Protective orders. Upon motion of a party or a person from whom discovery is sought or in accordance with section 10, the administrative law judge may make appropriate orders to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense as a result of the requested discovery request. The order may direct that:
10.9.1. The discovery may not be had;
10.9.2. The discovery may be had only on specified terms and conditions, including a designation of time and place for discovery;
10.9.3. The discovery may be had by a method of discovery other than that selected by the party seeking discovery;
10.9.4. Certain irrelevant matters may not be the subject of discovery, or that the scope of discovery be limited to certain matters;
10.9.5. Discovery may be conducted with no one present other than persons designated by the administrative law judge; or
10.9.6. A trade secret or other confidential research, development or commercial information may not be disclosed, or may be disclosed only in a designated way.
10.10. Discovery of commission staff and records.
10.10.1. The staff of the commission shall not be examined either by interrogatory or deposition except when leave to undertake such examination is granted by the administrative law judge upon motion alleging that:
10.10.1.a. The staff person has direct personal knowledge of evidence relevant to the proceeding other than evidence gathered as a result of investigation.
10.10.1.b. For other reasons, which shall be set forth with particularity, justice requires that the petition be granted.
10.10.1.c. Discovery has revealed that the staff person will be called as a witness.
10.10.2. Information which is exempt from discovery includes, but is not limited to:
10.10.2.a. Any record, report, memorandum, or communication dealing with the internal practice, policy and procedure of the commission.
10.10.2.b. Any record, report, memorandum, or communication of staff or any staff meeting regarding the institution, progress or result of an investigation of a complaint or regarding matters prepared in anticipation of a hearing.
10.10.2.c. Any record, report, memorandum, or communication regarding any endeavor to eliminate the unlawful discriminatory practice complained of by conference, conciliation or persuasion.
10.10.2.d. The work product of an investigator or other staff member made in the course of an investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint, or any report, record, memorandum, or communication made by staff during the investigation of a complaint or in anticipation of or in preparation for a hearing on the complaint which is otherwise privileged.
10.10.2.e. Any memorandum, statement or mental impression prepared or obtained by the commission's attorney.
10.11. Failure to make or cooperate in discovery.
10.11.1. Motion to compel discovery. If a deponent fails to answer a question propounded, or a party upon whom a request is made under sections 10.3. through 10.5. of these regulations fails to respond adequately, objects to a request, or fails to permit inspection as requested, the discovering party may move the administrative law judge for an order compelling a response or an inspection in accordance with the request. The motion shall:
10.11.1.a. State the nature of the request;
10.11.1.b. Set forth the response or objection of the party upon whom the request was served;
10.11.1.c. Present arguments supporting the motion; and
10.11.1.d. Attach copies of all relevant discovery requests and responses.
10.11.2. Evasive or incomplete answers. For the purposes of this section, an evasive or incomplete answer or response will be treated as a failure to answer or respond.
10.11.3. Administrative law judge ruling. In ruling on a motion under this section, the administrative law judge may enter an order compelling a response or an inspection in accordance with the request, may issue sanctions under subsection 10.11.4., or may enter a protective order under section 10.7.
10.11.4. Sanctions. If a party fails to comply with an order (including an order for taking a deposition, the production of evidence within the party's control, a request for admission, or the production of witnesses) the administrative law judge may:
10.11.4.a. Draw an inference in favor of the requesting party with regard to the information sought;
10.11.4.b. Prohibit the party failing to comply with the order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought;
10.11.4.c. Permit the requesting party to introduce secondary evidence concerning the information sought;
10.11.4.d. Strike any appropriate part of the pleadings or other submissions of the party failing to comply with such order; or
10.11.4.e. Take such other action as may be appropriate.
W. Va. Code R. § 71-8-11 Subpoenas
11.1. In general. This section governs the issuance of subpoenas in administrative proceedings under these rules. Except for time periods stated in these rules, to the extent that this rule conflicts with procedures for the issuance of subpoenas, the West Virginia Rules of Civil Procedure apply.
11.2. Issuance of subpoena. Upon the written request of a party, the executive director of the commission or the presiding administrative law judge may issue a subpoena requiring:
11.2.1. The attendance of a witness for the purpose of giving testimony at a deposition;
11.2.2. The attendance of a witness for the purpose of giving testimony at a hearing; and
11.2.3. The production of relevant books, papers, documents or tangible things.
11.3. Time of request. Requests for subpoenas in aid of discovery must be submitted in time to permit the conclusion of discovery 15 days before the date scheduled for the hearing. If a request for subpoenas of a witness for testimony at a hearing is submitted three days or less before the hearing, the subpoena shall be issued at the discretion of the presiding administrative law judge.
11.4. Service. A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service on a person shall be made by delivering a copy of the subpoena to the person and by tendering witness fees and mileage to that person. When the subpoena is issued on behalf of the commission, witness fees and mileage need not be tendered with the subpoena.
11.5. Amount of witness fees and mileage. A witness summoned by a subpoena issued under this section is entitled to the same witness and mileage fees as a witness in proceedings in the circuit courts of this state. Fees payable to a witness summoned by a subpoena shall be paid the party requesting the issuance of the subpoena, unless otherwise ordered by the administrative law judge as a part of the assessment of the costs. Where the administrative law judge determines that a party is unable to pay the fees, the fees shall be paid by the commission.
11.6. Motion to quash or limit subpoena. Upon a motion by the person served with a subpoena or by a party, made within five days of the service of the subpoena (but in any event not less than the time specified in the subpoena for compliance), the administrative law judge may:
11.6.1. Quash or modify the subpoena if it is unreasonable and oppressive or for other good cause shown; or
11.6.2. Condition denial of the motion upon the advancement, by the party on whose behalf the subpoena was issued, of the reasonable cost of producing subpoenaed books, papers or documents. Where the circumstances require, the administrative law judge may act upon such a motion at any time after a copy of the motion has been served upon the party on whose behalf the subpoena was issued.
11.7. Failure to comply with subpoena. If a person fails to comply with a subpoena issued under this section, the party requesting the subpoena may refer the matter to the attorney general for enforcement in appropriate proceedings under W. Va. Code §16B-18-12.
W. Va. Code R. § 71-8-12 Prehearing Procedures
12.1. Prehearing memoranda.
12.1.1. In general. Before the commencement of the hearing, the administrative law judge may direct parties to file prehearing memoranda.
12.1.2. Contents of prehearing memoranda. The prehearing memoranda must state the name of the party or parties presenting the memorandum, and, unless otherwise directed by the administrative law judge, briefly set forth the following:
12.1.2.a. Issues involved in the proceeding.
12.1.2.b. Facts stipulated by the parties and a statement that the parties have made a good faith effort to stipulate to the greatest extent possible.
12.1.2.c. Facts in dispute.
12.1.2.d. Witnesses (together with a summary of the testimony expected) and exhibits to be presented at the hearing. (Copies of those exhibits not already provided to the other party shall be attached.)
12.1.2.e. A brief statement of applicable law.
12.1.2.f. Conclusions to be drawn.
12.1.2.g. Estimated time required for presentation of the party's case.
12.1.2.h. Such other information as may assist in the disposition of the proceeding.
12.2. Prehearing conference.
12.2.1. In general. Before the commencement or during the course of the hearing, the administrative law judge may direct the parties to participate in a conference to expedite the hearing.
12.2.2. Matters considered. At the conference, the following matters may be considered:
12.2.2.a. Simplification and clarification of the issues.
12.2.2.b. Necessary amendments to the pleadings.
12.2.2.c. Stipulations of fact and of the authenticity, accuracy, and admissibility of documents.
12.2.2.d. Limitations on the number of witnesses.
12.2.2.e. Negotiation, compromise, or settlement of issues.
12.2.2.f. The exchange of proposed exhibits.
12.2.2.g. Matters of which official notice will be requested.
12.2.2.h. A schedule for the completion of actions discussed at the conference.
12.2.2.i. Such other information as may assist in the disposition of the proceeding.
12.2.3. Conduct of conference. The conference may be conducted by telephone, correspondence or personal attendance. Conferences, however, shall generally be conducted by a conference call, unless the administrative law judge determines that this method is impracticable. The administrative law judge shall give reasonable notice of the time, place and manner of the conference.
12.2.4. Record of conference. Unless otherwise directed by the administrative law judge, the conference will not be stenographically recorded. The administrative law judge will reduce the actions taken at the conference to a written order or, if the conference takes place less than seven days before the beginning of the hearing, may make a statement on the record summarizing the actions taken at the conference.
12.3. Mediation. The administrative law judge, upon the motion of a party or upon his or her own motion, may request the appointment of a mediator to attempt mediation of the charge. The mediator shall convene and preside over conferences and settlement negotiations between the parties and assess the practicalities of a potential settlement. The conduct of mediation or settlement negotiations shall not unduly delay the commencement of the hearing.
W. Va. Code R. § 71-8-13 Hearing Procedures
13.1. Date and place of hearing.
13.1.1. Date. The hearing shall commence not later than 120 days following the issuance of the charge unless it is impracticable to do so. If the hearing cannot be commenced within this time period, the administrative law judge shall notify in writing all parties, the aggrieved persons on whose behalf the charge was filed, and the attorney general of the reasons for the delay.
13.1.2. Place. The hearing will be conducted at a place in the vicinity in which the discriminatory housing practice is alleged to have occurred or to be about to occur, unless otherwise agreed by the parties, the aggrieved person and the administrative law judge.
13.1.3. Notification of time and place for hearing. The time frame order issued by the administrative law judge shall specify the time, date and place for the hearing. The administrative law judge may change the time, date or place of the hearing, or may temporarily adjourn or continue a hearing for good cause shown. If such a change is made or the hearing is temporarily adjourned, the administrative law judge shall give the parties at least five days' notice of the revised time, date and place for the hearing, unless otherwise agreed by the parties.
13.2. Conduct of hearing. The hearing shall be conducted in accordance with the Administrative Procedure Act, W. Va. Code §§29A-1-1, et seq.
13.3. Waiver of right to appear. If all parties waive their right to appear before the administrative law judge or to present evidence and arguments, it is not necessary for the administrative law judge to conduct an oral hearing. Such waivers shall be made in writing and filed with the administrative law judge. Where waivers are submitted by all parties, the administrative law judge shall make a record of the relevant written evidence submitted by the parties and pleadings submitted by the parties with respect to the issues in the proceeding. These documents shall constitute the evidence in the proceeding and the decision shall be based upon this evidence. Such hearings shall be deemed to commence on the first day that written evidence may be submitted for the record.
13.4. Evidence. The West Virginia Rules of Evidence apply to the presentation of evidence in hearings under this part.
13.5. In camera and protective orders. The administrative law judge may limit discovery or the introduction of evidence, or may issue such protective or other orders necessary to protect privileged communications. If the administration law judge determines that information in documents containing privileged matters should be made available to a party, the administrative law judge may order the preparation of a summary or extract of the nonprivileged matter contained in the origina1.
13.6. Exhibits.
13.6.1. Identification. All exhibits offered into evidence shall be numbered sequentially and marked with a designation identifying the party offering the exhibit.
13.6.2. Exchange of exhibits. One copy of each exhibit offered into evidence must be furnished to each of the parties and to the administrative law judge. If the administrative law judge does not fix a time for the exchange of exhibits, the parties shall exchange copies of exhibits at the earliest practicable time before the commencement of the hearing. Exhibits submitted as rebuttal evidence are not required to be exchanged before the commencement of the hearing if the submission of such evidence could not reasonably be anticipated at that time.
13.7. Authenticity. The authenticity of all documents furnished to the parties as required under section 13.6. and submitted as proposed exhibits in advance of the hearing shall be admitted unless a party files a written objection to the exhibit before the commencement of the hearing. Upon a clear showing of good cause for failure to file such a written objection, the administrative law judge may permit the party to challenge the authenticity.
13.8. Stipulations. The parties may stipulate to any pertinent facts by oral agreement at the hearing or by written agreement at any time. Stipulations may be submitted into evidence at any time before the end of the hearing. When received into evidence, the stipulation is binding on the parties.
13.9. Record of hearing.
13.9.1. Hearing record. All oral hearings shall be recorded and transcribed by a reporter designated by, and under the supervision of, the administrative law judge. The original transcript shall be a part of the record and shall constitute the sole official transcript. All exhibits introduced as evidence shall be marked for identification and incorporated as a part of the record. Transcripts may be obtained by the parties and by the public from the official reporter at rates not to exceed the applicable rates fixed by the contract with the reporter.
13.9.2. Corrections. Corrections to the official transcript will be permitted upon motion of a party. Motions for correction must be submitted within five days of the receipt of the transcript. Corrections of the official transcript will be permitted only where errors of substance are involved and upon the approval of the administrative law judge.
13.10. Arguments, post-hearing memoranda, and proposed findings of fact and conclusions of law.
13.10.1. Arguments. Following the submission of evidence at an oral hearing, the administrative law judge may hear oral arguments at the hearing. The administrative law judge may limit the time permitted for such arguments to avoid unreasonable delay.
13.10.2. Submission of post-hearing memoranda and proposed findings of fact and conclusions of law. The administrative law judge may permit the submission of written memoranda and proposed findings of fact and conclusions of law following the adjournment of the oral hearing. Written post-hearing submissions shall be simultaneously filed by all parties and shall be due not later than 30 days following the adjournment of the oral hearing.
13.11. End of hearing.
13.11.1. Oral hearings. Where there is an oral hearing, the hearing ends on the day of the adjournment of the oral hearing or, where written briefs are permitted, on the date that the written briefs are due.
13.11.2. Hearing on written record. Where the parties have waived an oral hearing, the hearing ends on the date set by the administrative law judge as the final date for the receipt of submissions by the parties.
13.12. Receipt of evidence following hearing. Following the end of the hearing, no additional evidence may be accepted into the record, except with the permission of the administrative law judge. The administrative law judge may receive additional evidence upon a determination that new and material evidence was not readily available before the end of the hearing, the evidence has been timely submitted, and its acceptance will not unduly prejudice the rights of the parties. However. The administrative law judge shall include in the record any motions for attorney's fees (including supporting documentation), and any approved corrections to the transcripts.
W. Va. Code R. § 71-8-14 Dismissals and Decisions
14.1. Dismissa1.
14.1.1. Election of judicial determination. If the complainant, the respondent, or the aggrieved person on whose behalf a complaint was filed makes a timely election to have the claims asserted in the charge decided in a civil action under W. Va. Code §16B-18-13(o), the administrative law judge shall dismiss the administrative proceeding.
14.1.2. Effect of a civil action on administrative proceeding. An administrative law judge may not continue an administrative proceeding under this part regarding an alleged discriminatory housing practice after the beginning of the trial of a civil action commenced by the aggrieved person under-state or federal law seeking relief with respect to that discriminatory housing practice. If such a trial is commenced, the administrative law judge shall dismiss the administrative proceeding. The commencement and maintenance of a civil action for appropriate temporary or preliminary relief under W. Va. Code §16B-18-13(j), or proceedings for such relief under W. Va. Code §16B-18-14 does not affect administrative proceedings under these regulations.
14.2. Initial decision of administrative law judge.
14.2.1. In general. Within the time period set forth in subsection 14.2.4., the administrative law judge shall issue an initial decision including findings of fact and conclusions of law upon each material issue of fact or law presented on the record. The initial decision of the administrative law judge shall be based on the record of the proceeding.
14.2.2. Finding against respondent. If the administrative law judge finds that a respondent has engaged, or is about to engage, in a discriminatory housing practice, the administrative law judge shall issue an initial decision against the respondent and order such relief as may be appropriate. The relief may include, but is not limited to, the following:
14.2.2.a. The administrative law judge may order the respondent to pay damages to the aggrieved person, including damages caused by humiliation and embarrassment. Special damages shall be subject to prejudgment interest. Pursuant to the holding in Bishop Coal Co. v. Salyers, 380 S.E.2d 238 (W. Va. 1989), there shall be a cap on damages awarded for humiliation and embarrassment. With regard to each unlawful discriminatory practice committed by each respondent against each aggrieved person, damages for humiliation and embarrassment may not be in excess of this cap. The cap shall be in an amount to be periodically established by the commission, which amount shall be based upon a figure of $2,500, adjusted in accordance with the Consumer Price Index since 1989.
14.2.2.b. The administrative law judge may provide for injunctive or such other equitable relief as may be appropriate. No such order may affect any contract, sale, encumbrance or lease consummated before the issuance of the initial decision that involved a bona fide purchaser, encumbrancer or tenant without actual knowledge of the charge.
14.2.2.c. To vindicate the public interest, the administrative law judge may assess a civil penalty against the respondent.
14.2.2.c.1. The amount of the civil penalty may not exceed:
14.2.2.c.1.A. Ten thousand dollars, if the respondent has not been adjudged to have committed any prior discriminatory housing practice in any administrative hearing or civil action permitted under the West Virginia Fair Housing Act or any state, federal or local fair housing law, or in any licensing or regulatory proceeding conducted by a Federal, State or local governmental agency.
14.2.2.c.1.B. Twenty-five thousand dollars, if the respondent has been adjudged to have committed one other discriminatory housing practice in any administrative hearing or civil action permitted under the West Virginia Fair Housing Act, or any state, federal or local fair housing law, or in any licensing or regulatory proceeding conducted by a federal, state, or local government agency, and the adjudication was made during the five year period preceding the date of filing of the charge.
14.2.2.c.1.C. Fifty thousand dollars, if the respondent has been adjudged to have committed two or more discriminatory housing practices in any administrative hearings or civil actions permitted under the West Virginia Fair Housing Act or any state, federal or local fair housing law, or in any licensing or regulatory proceeding conducted by a federal, state, or local government agency, and the adjudications were made during the seven-year period preceding the date of the filing of the charge.
14.2.2.c.2. If the acts constituting the discriminatory housing practice that is the subject of the charge were committed by the same natural person who has previously been adjudged, in any administrative proceeding or civil action, to have committed acts constituting a discriminatory housing practice, the time periods set forth in subparagraphs 14.2.2.c.1.B. and 14.2.2.c.1.C. do not apply.
14.2.2.c.3. In a proceeding involving two or more respondents, the administrative law judge may assess a civil penalty as provided under subdivision 14.2.2.c. against each respondent that the administrative law judge determines has been engaged or is about to engage in a discriminatory housing practice.
14.2.3. Finding in favor of respondent. If the administrative law judge finds that a respondent has not engaged, and is not about to engage, in a discriminatory housing practice, the administrative law judge shall make an initial decision dismissing the charge.
14.2.4. Date of issuance. The administrative law judge shall issue an initial decision within 60 days after the end of the hearing, unless it is impracticable to do so. If the administrative law judge is unable to issue the initial decision within this time period (or within any succeeding 60-day period following the initial 60-day period), the administrative law judge shall notify in writing all parties, the aggrieved person on whose behalf the charge was filed, and the deputy attorney general of the civil rights division, of the reasons for the delay. In no event shall the initial decision be issued more than 25 or less than ten days before the next regularly scheduled meeting of the commissioners.
14.3. Service of initial decision. Simultaneously with the issuance of the initial decision, the administrative law judge shall serve the initial decision on all parties, the aggrieved person on whose behalf the charge was filed, the attorney general, the executive director of the West Virginia Human Rights Commission, and upon each duly appointed commissioner of the West Virginia Human Rights Commission. The initial decision will include a notice stating that the initial decision will become the final decision of the commission unless the commission issues a final decision under section 14.6. within 30 days of the date of issuance of the initial decision.
14.4. Resolution of charge. At any time before the issuance of a final decision under section 14.6., the parties may submit an agreement resolving the charge. The agreement must be signed by the deputy attorney general for civil rights or his/her designee, the respondent, and the aggrieved person upon whose behalf the charge was issued. The administrative law judge shall accept the agreement by issuing an initial decision based on the agreed findings. The submission of an agreement resolving the charge constitutes a waiver of any right to challenge or contest the validity of a decision entered in accordance with the agreement.
14.5. Appeals to the West Virginia Human Rights Commission.
14.5.1. Any party aggrieved by the initial decision of the administrative law judge may petition the commissioners for review of said decision, provided that the original and nine copies of a petition for review must be filed with the commission no later than five (5) days after the issuance of an initial decision.
14.5.2. A petition for review shall concisely describe any alleged error in the initial decision and state the grounds for the reversal or modification of the initial decision.
14.6. Final decision.
14.6.1. Issuance of final decision by the commission. The commissioners of the West Virginia Human Rights Commission may review any finding of fact, conclusion of law, or order contained in the initial decision of the administrative law judge and issue a final decision in the proceeding. The commissioners may affirm, modify or set aside, in whole or in part, the initial decision or remand the initial decision for further proceedings. The commission shall serve the final decision on all parties no later than 30 days from the date of issuance of the initial decision of the administrative law judge. The final decision shall be served on all parties, the aggrieved person on whose behalf the charge was filed and the attorney general.
14.6.2. No final decision by the commission. If the commission does not serve a final decision within the time period described above, the initial decision of the administrative law judge will become the final decision of the commission. For the purposes of this part, such a final decision will be considered to have been issued 30 days following the date of issuance of the initial decision.
14.6.3. Public disclosure. The commission shall make public disclosure of each final decision.
14.6.4. Decisions on remand. If the commission remands the decision for further proceedings, the administrative law judge shall issue an initial decision on remand within 60 days of the date of issuance of the commission's decision, unless it is impractical to do so. If the administrative law judge is unable to issue the initial decision within this time period (or within any succeeding 60-day period following the initial 60-day period), the administrative law judge shall notify in writing the parties, the aggrieved person on whose behalf the charge was filed, and the executive director, of the reasons for the delay.
14.7. Action upon issuance of a final decision.
14.7.1. Licensed or regulated businesses.
14.7.1.a. If a final decision includes a finding that a respondent has engaged or is about to engage in a discriminatory housing practice in the course of a business that is subject to licensing or regulation by a federal, state or local governmental agency the executive director will notify the governmental agency of the decision by:
14.7.1.a.1. Sending copies of the findings of fact, conclusions of law and the final decision to the governmental agency by certified mail; and
14.7.1.a.2. Recommending appropriate disciplinary action to the governmental agency, including, where appropriate, the suspension or revocation of the license of the respondent.
14.7.1.b. The executive director will notify the appropriate governmental agencies within 30 days after the date of issuance of the final decision, unless a petition for judicial review of the final decision as described in section 15.1. has been filed before the issuance of the notification of the agency. If such a petition has been filed, the executive director will provide the notification to the governmental agency within 30 days of the date that the final decision is affirmed upon review. If a petition for judicial review is timely filed following the notification of the governmental agency, the executive director will promptly notify the governmental agency of the petition and withdraw his or her recommendation.
14.7.2. Notification to the attorney general. If a final decision includes a finding that a respondent has engaged or is about to engage in a discriminatory housing practice and another final decision including such a finding was issued under this part within the 5 years preceding the date of issuance of the final decision, the executive director will notify the attorney general of the decisions by sending a copy of the final decisions in each administrative proceeding.
14.8. Attorney fees and costs. Following the issuance of the final decision under section 14.6. finding that one or more respondents has engaged in an unlawful practice under the West Virginia Fair Housing Act, a prevailing complainant, aggrieved party or intervenor may apply for attorney's fees and costs. The administrative law judge will issue an initial decision awarding or denying such fees and costs. The initial decision will become the final decision of the commission unless the commission reviews the initial decision and issues a final decision on fees and costs within 30 days. The recovery of reasonable attorney's fees and costs will be permitted as follows:
14.8.1. The respondent will be liable for the reasonable attorney fees of an aggrieved person for the services of such person's private counsel.
14.8.2. Where the case on behalf of the aggrieved person has been presented at hearing by the attorney general, the respondent will be liable for the reasonable attorney fees of the attorney general incurred in the preparation and presentation of the aggrieved person's case.
14.8.3. To the extent that an intervenor is a prevailing party, the respondent will be liable for reasonable attorney's fees unless special circumstances make the recovery of such fees and costs unjust.
W. Va. Code R. § 71-8-15 Judicial Review and Enforcement of Final Decision
15.1. Judicial review of final decision.
15.1.1. Petition for review. Any party adversely affected by a final decision under 14.6. may file a petition in the appropriate circuit court for review of the decision under W. Va. Code §16B-18-13(h). The petition must be filed within 30 days of the date of issuance of the final decision.
15.1.2. No petition for review. If no petition for review is filed under subsection 15.1.1. within 45 days from the date of issuance of the final decision, the findings of facts and final decision shall be conclusive in connection with any petition for enforcement described under section 15.2. filed thereafter by the commission, and in connection with any petition for enforcement described under section 15.2.
15.2. Enforcement of final decision.
15.2.1. Enforcement by the commission. Following the issuance of a final decision under section 14.6., the commission may petition the appropriate circuit court for the enforcement of the final decision and for appropriate temporary relief or restraining order.
15.2.2. Enforcement by others.
If before the expiration of sixty (60) days from the date of issuance of the final decision under 14.6., no petition for review of the final decision has been filed, and the commission has not sought enforcement of the final decision as described in subsection 15.2.1., any person entitled to relief under the final decision may petition the appropriate court for the enforcement of the final decision.
71CSR8
Series 09 Rules Regarding Housing Discrimination Against Persons with Disabilities Who Utilize Assistance Animals
W. Va. Code R. § 71-9-1 General
1.1. Scope. -- The following legislative rules of the West Virginia Human Rights Commission set forth standards for compliance with the requirements of the West Virginia Fair Housing Act, W. Va. Code §16b-18-1, et seq., regarding nondiscrimination against persons with disabilities who utilize assistance animals to perform major life activities or to ameliorate the effect of its master’s disability. In these rules, the word “handicap” and its derivations are replaced by the word “disability” and its derivations, in order to conform to a convention established by the Americans with Disabilities Act of 1990 and the West Virginia Human Rights Act, as amended, even though the Federal Fair Housing Act and the West Virginia Fair Housing Act use the term “handicap.” For the purpose of these rules, “disability” is synonymous with “handicap.”
1.2. Authority. -- W. Va. Code §16B-17-8(h), §16B-18-5, §16B-18-9, §16B-18-13, and §16B-18-20.
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-9-2 Definitions
2.1. “Assistance animal” means any service animal or emotional support animal, with or without specific training and/or certification, which is kept and used by a person with a disability, to perform or assist in performing one or more major life activities, or to ease or ameliorate the effects of its masters disability.
W. Va. Code R. § 71-9-3 Assistance Animals As An Accommodation To A Disability
3.1. It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a person with a disability equal opportunity to use and enjoy a dwelling unit, including public and common use areas.
3.2. Rules, policies, practices, or services regarding pets are subject to the reasonable accommodation requirements of subsection 3.1; provided, that in connection with a request for reasonable accommodation to such rules, policies, practices, or services, a person with a disability may be required to provide supporting material documenting the need for the assistance animal.
3.3. Where reasonable accommodation to rules, policies, practices, or services with regard to animals is required, it shall be unlawful to condition such accommodation on the payment of additional fees or deposits.
3.4. A person with a disability may be refused the accommodation of an assistance animal if there is credible evidence that such assistance animal would be a direct threat to the health or safety of others.
3.5. A person with a disability who keeps or uses an assistance animal shall be responsible for seeing that such assistance animal lives in the home of such person without disturbing the property or quiet enjoyment of the property owner or such person’s neighbors and shall be liable for any damage caused by such assistance animal.
Series 10 Rules Regarding the Pregnant Workers' Fairness Act
W. Va. Code R. § 71-10-1 General
1.1. Scope. -- The following legislative rule series, filed pursuant to the West Virginia Pregnant Workers’ Fairness Act (PWFA), W. Va. Code §§16B-19-1, et seq., sets forth definitions and identifies some reasonable accommodations addressing known limitations related to pregnancy, childbirth, or related medical conditions.
1.2. Authority. -- W. Va. Code §16B-19-4.
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. – This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-10-2 Definitions
2.1. “Affected by Pregnancy” means a woman who is pregnant or is experiencing medical conditions related to her pregnancy which has ended.
2.2. “Undue hardship” – In general, the term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subsection 2.2.1.
2.2.1. Factors to be considered. In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include:
2.2.1.a. The nature and cost of the accommodation needed under this article;
2.2.1.b. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
2.2.1.c. The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
2.2.1.d. The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
2.3. “Reasonable accommodation” – The term “reasonable accommodation” may include:
2.3.1. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
2.3.2. Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
2.4. “Related medical conditions” means physical and mental symptoms or limitations relating to or caused by a pregnancy, including but not limited to, miscarriage, complications of pregnancy or childbirth, gestational diabetes, pregnancy-induced hypertension, after-effects of delivery, post-partum depression, and lactation: Provided, That an elective abortion shall not be considered a related medication condition.
2.5. “Covered entity” means the state, or any political subdivision thereof, and any person employing twelve or more persons within the state for 20 or more calendar weeks in the calendar year in which the act of discrimination allegedly took place or the preceding calendar year: Provided, That such terms shall not be taken, understood or construed to include a private club.
2.6. “Person” means one or more individuals, partnerships, associations, organizations, corporations, labor organizations, cooperatives, legal representatives, trustees, trustees in bankruptcy, receivers and other organized groups of persons.
W. Va. Code R. § 71-10-3 Examples of Reasonable Accommodations
3.1. Reasonable accommodations that may be made by a covered entity include, but are not limited to:
3.1.1. Bathroom breaks;
3.1.2. Breaks for increased water intake;
3.1.3. Periodic rest;
3.1.4. Assistance with manual labor;
3.1.5. Providing time off for prenatal medical appointments;
3.1.6. Modified work policies or procedures;
3.1.7. Temporary transfers to less strenuous or less hazardous work;
3.1.8. Allowing for more time or more frequent eating;
3.1.9. Allowing time for taking prescribed medications; and
3.1.10. Providing access to existing facilities that are more convenient and usable by a woman affected by pregnancy.
Series 11 West Virginia Clearance for Access: Registry and Employment Screening
W. Va. Code R. § 71-11-1 General Provisions
1.1. Scope. -- It is the purpose of this rule to protect West Virginia’s vulnerable population by requiring registry prescreening and state and federal criminal background checks for all direct access personnel of the bureaus, covered providers, and covered contractors. The short title of this rule shall be known as WV CARES.
1.2. Authority. -- W. Va. Code §16B-15-9.
1.3. Filing Date. -- February 5, 2025.
1.4. Effective Date. -- February 5, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2029.
1.6. Application. -- This rule applies to the bureaus, covered providers, and covered contractors as defined in this rule and W. Va. Code §§16B-15-1, et seq.
1.7. Enforcement. -- This rule is enforced by the Director of West Virginia Clearance for Access: Registry and Employment Screening within the Office of the Inspector General, or his or her lawful designee.
W. Va. Code R. § 71-11-2 Definitions
2.1. Definitions incorporated by reference. -- Those terms defined in W. Va. Code §§16B-15-1, et seq., are incorporated herein by reference.
2.2. Conviction -- means a finding of guilt by a court, a plea of guilty, or nolo contendere was accepted, or when the individual entered a first offender, deferred adjudication, or arrangement or program where the judgment of conviction is withheld, regardless of whether an appeal is pending.
2.3. Covered Contractor -- means any contractor whose employees are working at facilities or providers that are required to participate in the West Virginia Clearance for Access: Registry and Employment Screening program and meet the definition of a covered provider as defined within this section.
2.4. Covered Provider -- means the following facilities or providers that are required to participate in the WV CARES program: skilled nursing facilities; nursing facilities; home health agencies; providers of hospice care; long-term care hospitals; providers of personal care services; providers of adult day care; residential care providers that arrange for or directly provide long-term care services including assisted living facilities; intermediate care facilities for individuals with intellectual disabilities; persons responsible for the care of children; chronic pain management clinics; behavioral health centers; neonatal abstinence syndrome centers; opioid treatment centers; and any other facility or provider required to participate in the WV CARES program as determined by the Office of the Inspector General, Secretary of the West Virginia Department of Health, Secretary of the West Virginia Department of Human Services, or Secretary of the Department of Health Facilities in legislative rule.
2.5. Direct On-site Supervision -- means uninterrupted observation of a provisional employee by another employee who has cleared all the required background checks. Provisional employees cannot have direct access without being supervised or observed as required by the provisions of this rule.
2.6. Director -- means the Director of the West Virginia Clearance for Access: Registry and Employment Screening program or his or her designee located within the Office of the Inspector General.
2.7. Disqualifying Offense -- means a conviction or substantiated finding for any of the crimes that exclude an applicant from direct access personnel positions in the bureau, covered provider, or covered contractor including the conviction of attempt, solicitation, conspiracy, aiding, or abetting the underlying crime. Disqualifying convictions include those crimes enumerated in federal or any state’s code and recognized by the West Virginia State Police, and that generally fall within the following categories:
2.7.1. State or federal health and social services program-related crimes;
2.7.2. Patient abuse or neglect;
2.7.3. Health care fraud;
2.7.4. Felony drug crimes;
2.7.5. Crimes against care-dependent or vulnerable individuals;
2.7.6. Felony crimes against the person;
2.7.7. Felony crimes against property;
2.7.8. Sexual offenses;
2.7.9. Felony crimes against chastity, morality and decency;
2.7.10. Felony crimes against public justice;
2.7.11. Felony traffic offenses;
2.7.12. Felony crimes against the peace;
2.7.13. Human trafficking; and
2.7.14. Felony money laundering.
2.8. Disqualifying Offense for Persons Responsible for the Care of Children -- means, in addition to those offenses listed in section 2.5. of this rule, a conviction or substantiated finding for any of the following crimes, including the conviction of attempt, solicitation, conspiracy, aiding, or abetting the underlying crime, that exclude the applicant from being responsible for the care of children or engagement with the bureau, covered provider, or covered contractor:
2.8.1. Misdemeanor drug crimes;
2.8.2. Misdemeanor crimes against the person;
2.8.3. Misdemeanor crimes against chastity, morality, and decency; and
2.8.4. Serious traffic offenses.
2.9. Fitness Determination -- means a finding by the Director after review of an applicant’s criminal history record information that the applicant is either eligible or ineligible for employment or engagement.
2.10. Office of the Inspector General. -- means the Office of the Inspector General as described in W. Va. Code §16B-2-1.
2.11. Persons Response for the Care of Children. -- means those persons referred to in W. Va. Code §49-2-114(b).
2.12. Prescreening. -- means a mandatory search of internet-based registries and databases for exclusions and licensure status prior to the submission of fingerprints for a criminal history record information check. Registries and databases included in prescreening include, but are not limited to the Office of the Inspector General List of Excluded Individuals and Entities, West Virginia Medicaid Exclusions List, National Nurse Aide Registry, West Virginia Nurse Aide Registry, GSA System for Award Management, National Sex Offender public website, and West Virginia Sex Offender Registry. Other national and state registries may be required to be checked where indicated.
W. Va. Code R. § 71-11-3 Prescreening
3.1. A covered provider or covered contractor shall prescreen all direct access personnel applicants considered for hire for negative findings by way of an internet search of registries and licensure databases through the WV CARES website. The bureau shall prescreen all direct access applicants considered for hire for negative findings by way of an internet search of registries and licensure databases through the WV CARES website. The Director will charge a $25 fee for its use.
3.2. A covered provider shall ensure that all covered contractors who provide direct access personnel prescreen their applicants considered for hire for negative findings by way of an internet search of registries and licensure databases through the WV CARES website.
3.3. The bureau shall ensure that all covered contractors who provide direct access personnel prescreen their applicants considered for hire for negative findings by way of an internet search of registries and licensure databases through the WV CARES website.
3.4. If the applicant has a negative finding on any required registry or licensure database, the employing or engaging bureau, covered provider, or covered contractor shall notify the applicant, in writing, by regular U.S. mail, of such finding and shall not employ that applicant.
W. Va. Code R. § 71-11-4 Fingerprinting
4.1. If the applicant does not have a negative finding in the prescreening process, and the bureau, covered provider, or covered contractor, if applicable, is considering the applicant for employment, the applicant shall submit to fingerprinting for a state and federal criminal history record information check, and may be employed as a provisional employee subject to the provisions of this rule.
4.2. Applicants considered for hire or engagement shall be notified by the hiring or engaging entity that their fingerprints will be retained by the State Police Criminal Identification Bureau and the Federal Bureau of Investigation to allow for updates of criminal record information according to applicable standards, rules, regulations, or laws. The Director will notify hiring or engaging entities in writing by electronic mail of subsequent, disqualifying criminal offenses discovered through rap back, deeming that employee ineligible. If a variance is requested relating to a rap back notification of ineligibility, the affected employee’s status of employment may continue until the variance is resolved at the discretion of the bureau, covered provider, or covered contractor. The requirements related to provisional employees in W. Va. Code §§16B-11-1, et seq. and section 6 of this rule shall apply.
4.3. An applicant who has gone through the criminal background check process described by the provisions of this rule, but has not been employed by the bureau, covered provider, or covered contractor for five years, must submit new fingerprints and obtain a new fitness determination from the Director.
4.4. After an applicant’s fingerprints have been compared with the state and federal criminal history information, the State Police shall notify the Director of the results for the purposes of making a fitness determination.
W. Va. Code R. § 71-11-5 Fitness Determination
5.1. If the Director’s review of the criminal history record information provided by the State Police reveals the applicant does not have a disqualifying offense, the applicant may be employed or engaged.
5.2. If the Director’s review of the criminal history record information reveals a conviction of a disqualifying offense, the applicant may not be employed or engaged, unless a variance has been requested or granted.
5.3. If the Director’s review of an applicant’s criminal history record information reveals a pending charge that has not received a final disposition, the following shall apply:
5.3.1. If the pending charge is a disqualifying misdemeanor offense, the applicant has not had a conviction of a disqualifying offense in the last seven years, and the applicant has been granted a variance for his or her position with the bureau, covered provider, or covered contractor for any disqualifying offense prior to the last seven years, the Director will provide written notice to the bureau, covered provider, or covered contractor advising that the applicant is eligible for work or engagement. If there has been another disqualifying offense within the last seven years, the Director will notify the bureau, covered provider, or covered contractor of the applicant’s ineligibility status. A variance may be requested for the pending, disqualifying misdemeanor offense.
5.3.2. If the pending charge is a disqualifying felony offense, the Director will provide written notice to the bureau, covered provider, or covered contractor advising that the applicant is ineligible for work, or engagement. A variance may be requested regarding the pending disqualifying felony offense.
5.3.3. Once a final disposition has been made on the pending charge, the Director will review the criminal history record information de novo in accordance with the provisions of this rule and W. Va. Code §§16B-15-1, et seq.
5.4. The Director will provide written notice by electronic mail of the fitness determination to the bureau, covered provider, or covered contractor, if applicable, but shall not disseminate the criminal history record information.
5.5. The bureau, covered provider, or covered contractor, if applicable, shall maintain a copy of the written notice of the eligible fitness determination in the applicant’s personnel file or engagement provider record.
W. Va. Code R. § 71-11-6 Provisional Employees
6.1. Provisional basis employment for no more than 60 days may occur when:
6.1.1. An applicant does not have a negative finding on a required registry or licensure database, and the fitness determination is pending the criminal history record information; or
6.1.2. An applicant has requested a variance of the fitness determination and that decision is pending.
6.2. All provisional employees shall receive direct, on-site supervision by the bureau, covered provider, or covered contractor until an eligible fitness determination is received.
6.3. The provisional employee, pending the fitness determination, must affirm, in a signed statement, that he or she has not committed a disqualifying offense, and acknowledge that a disqualifying offense shall constitute good cause for termination. Provisional employees who have requested a variance shall not be required to sign such a statement.
6.4. This section does not apply to applicants who are persons responsible for the care of children and applicants who will be personal care workers or the equivalent regardless of job title.
W. Va. Code R. § 71-11-7 Variance
7.1. The applicant, or the bureau, covered provider, or covered contractor, if applicable, on the applicant’s behalf, may file a written request for a variance of the fitness determination with the Director.
7.2. The Director may grant a variance if mitigating circumstances surrounding the negative finding or disqualifying offense is provided, and the Director finds that the individual will not pose a danger or threat to residents or their property, or both.
7.3. Mitigating circumstances may include:
7.3.1. The passage of time. The length of time an applicant is barred from employment or engagement in direct access care starts from the date of conviction or the date of release from the penalty imposed, whichever is later.
7.3.2. Extenuating circumstances such as the applicant’s age at the time of conviction, substance abuse, or mental health issues.
7.3.3. A demonstration of rehabilitation such as character references, employment history, education, and training.
7.3.4. The relevancy of the disqualifying offense or offenses with respect to the type of employment or engagement sought.
7.4. The Director will send by regular U.S. mail to the applicant and the bureau, covered provider, or covered contractor, if applicable, a written decision within 60 days of receipt of the request indicating whether a variance has been granted or denied. The hiring or engaging entity’s decision is ultimately the prerogative of each bureau, covered provider, or covered contractor.
W. Va. Code R. § 71-11-8 Appeals
8.1. If the applicant believes that his or her criminal history record information within the state of West Virginia is incorrect or incomplete, he or she may challenge the accuracy of such information by writing to the State Police for a personal review.
8.2. If the applicant believes that his or her criminal history record information from outside the state of West Virginia is incorrect or incomplete, he or she may appeal the accuracy of such information by contacting the Federal Bureau of Investigation for instructions.
8.3. If the purported discrepancies are at the charge or final disposition level, the applicant must address this with the court or arresting agency that submitted the record to the State Police.
8.4. The applicant shall not be employed or engaged during the appeal process unless a variance has been requested and granted.
W. Va. Code R. § 71-11-9 Responsibility of the Bureau, Covered Provider, or Covered Contractor
9.1. Record Retention. A bureau, covered provider, or covered contractor shall maintain the following documents related to the criminal background checks for all direct access personnel for the duration of their employment or engagement, including:
9.1.1. Documents establishing that an applicant has no negative findings on registries and licensure databases.
9.1.2. The Director’s eligible fitness determination;
9.1.3. Any variance granted by the Director, if applicable; and
9.1.4. For provisional employees, the bureau, covered provider, or covered contractor shall maintain documentation that establishes that the individual meets the qualifications for provisional employment or engagement.
9.2. Except as otherwise permitted by this rule, the bureau, covered provider, or covered contractor may not employ or engage an applicant or an independent health contractor, prior to completing the criminal background check process.
9.3. Failure of the bureau, covered provider, or covered contractor to ensure proper completion of the criminal background check process for each individual employed or engaged as direct access personnel may result in the imposition of civil money penalties of $2,500 per occurrence. Employing or engaging individuals knowing that they are ineligible to work or for engagement may subject the bureau, covered provider, or covered contractor to civil money penalties of $2,500 per occurrence. Each civil money penalty will be levied by the Director by written notice.
W. Va. Code R. § 71-11-10 Change in Employment or Engagement Status
10.1. If an individual applies for employment or engagement with the bureau or a subsequent covered provider or covered contractor, the applicant is not required to submit to fingerprinting and a criminal background check if:
10.1.1. The individual previously submitted to fingerprinting and a full criminal background check as required by this rule;
10.1.2. The prior criminal background check confirmed that the individual did not have a disqualifying offense;
10.1.3. The individual received prior approval from the Director to work for or with the bureau, covered provider, or independent health contractor, if applicable; and
10.1.4. No new criminal activity that constitutes a disqualifying offense has been reported.
10.2. The Director will provide a copy of the fitness determination upon request by the bureau, or a subsequent covered provider or covered contractor.
W. Va. Code R. § 71-11-11 Confidentiality and Immunity
11.1. The Director will treat and maintain any criminal background search information obtained under this article as confidential. The Director will limit the use of records solely to the purposes authorized by W. Va. Code §§16B-15-1, et seq. The criminal history record and related information in the custody of the Director is not subject to subpoena, other than one issued in a criminal action or investigation; is confidential by law and privileged; and is not subject to discovery or admissible in evidence in any private civil action.
11.2. The Director, the Office of the Inspector General, and its employees are immune from liability, civil or criminal, that might otherwise be incurred or imposed for good faith conduct in determining eligibility or granting variances permitted by this rule.
Series 12 Hospital Licensure
W. Va. Code R. § 71-12-1 General
1.1. Scope. -- This legislative rule establishes standards and procedures for the licensing of hospitals and extended care facilities operated in connection with a hospital.
1.2. Authority. -- W. Va. Code §16B-3-8.
1.3. Filing Date. -- May 29, 2025.
1.4. Effective Date. -- June 5, 2025.
1.5. Sunset Provision. -- This rule shall terminate and have no further force on August 1, 2030.
1.6. Applicability. -- This rule applies to any person, partnership, association, corporation, state or local governmental unit, political subdivision, division, department, board, or agency that establishes, maintains, or operates a hospital or an extended care unit in connection with a hospital as defined in this rule and W. Va. Code §16B-3-1, et seq.
1.7. Enforcement -- This rule is enforced by the Office of Inspector General or his or her lawful designee. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule, except where otherwise stated.
1.8. Purpose -- The purpose of this rule is to ensure all West Virginia hospitals conform to a common set of standards and procedures. All standards and procedures are minimum requirements whereby hospitals may be surveyed and evaluated to ensure the health and safety of all patients treated in West Virginia hospitals.
W. Va. Code R. § 71-12-2 Definitions
2.1. Definitions incorporated by reference. -- Those terms defined in W. Va. Code §16B-3-1, et seq., are incorporated herein by reference.
2.2. Abuse -- The infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.
2.3. Applicant -- The person who submits an application for a license or renewal of a license to operate a hospital or extended/skilled care facility operated in connection with a hospital.
2.4. Bed Capacity -- The maximum number of beds a hospital is licensed to offer for inpatient care including all specialty beds.
2.5. Coronary Care Unit -- A specialized area of a hospital containing a grouping of single bedrooms or single bed enclosures where constant, intensive visual observation, and immediate emergency and prescribed non-emergency coronary care, and treatment are provided.
2.6. Critical Access Hospital -- A hospital is a critical access hospital if it:
2.6.1. Is a not-for-profit, for-profit, or public hospital and is located in a county in a rural area as described in 42 U.S.C.A. § 1395i-4;
2.6.2. Is located more than a 35-mile drive from a hospital or another health care facility or is located more than a 15-mile drive from a hospital or another health care facility in the case of mountainous terrain or in areas where only secondary roads are available;
2.6.3. Is designed by the state as being a necessary provider of health care services to residents in the area;
2.6.4. Makes available 24-hour emergency care services: Provided, That the state will determine necessary criteria for ensuring access to emergency care in each area served by the hospital;
2.6.5. Provides not more than 25 beds for providing inpatient care for a period not to exceed 96 hours for each hospitalization to be averaged annually, unless a longer period is required because transfer to a hospital is precluded because of inclement weather or other emergency conditions: Provided, That swing bed patients are not limited to the 96-hour requirement;
2.6.6. Has nursing services available on a 24-hour basis;
2.6.7. Provides basic services as required under Critical Access Regulations 42 C.F.R. § 485.635; and
2.6.8. Meets the requirements of 42 U.S.C.A. § 1395dd, Emergency Medical Treatment and Active Labor Act (EMTALA).
2.7. Extended Care Unit -- A unit that provides skilled nursing and related services for long-term care patients who require medical, nursing, and other professional health care services.
2.8. Family -- A group of two or more persons related by blood, marriage, significant relationship, or adoption.
2.9. Hospitalization -- The in-house accommodation and care of any person for a continuous period of time, generally longer than 24 hours, for the purpose of providing medical, surgical, nursing and other professional health care services.
2.10. Intensive Care Unit -- A specialized area of a hospital containing a grouping of single-bed rooms or enclosures where close and frequent, if not constant, nursing observation can occur for critically and seriously ill patients requiring highly skilled nursing care.
2.11. License -- The document issued by the Director that constitutes the hospital’s authority to receive patients and perform services included within the scope of this rule.
2.12. Licensed or Registered -- When applied to a person, means that the person licensed or registered to follow a profession by the proper authority within the state of West Virginia and when applied to a hospital means that the hospital is licensed by the Office of Health Facility Licensure and Certification. A licensed physician is licensed by the West Virginia Board of Medicine or the West Virginia Board of Osteopathic Medicine.
2.13. Long-Term Acute Care Hospital (LTACH) -- A hospital where patients receive care who have been in intensive care or in a short-term acute care setting and require an extended length of stay greater than 25 days. LTACHs are referred to as a hospital within a hospital.
2.14. Medical Staff -- The group of physicians and other licensed health care professionals who practice in the hospital in accordance with section 11 of this rule.
2.15. Midlevel practitioner -- Physician assistants, clinical nurse specialists, or nurse practitioners.
2.16. Neglect -- Failure to provide goods and services necessary to prevent physical harm, mental anguish, or both.
2.17. Nurse Aide Registry -- A list of nurse aides whose names appear on a registry as referenced by 42 C.F.R. § 483.156 maintained by the department who have:
2.17.1. Successfully completed a state approved or other recognized nurse aide training and competency evaluation program; and
2.17.2. Been determined as meeting these requirements.
2.18. Patient Care/Nursing Unit -- A designated area of the hospital that provide a bedroom or a grouping of bedrooms with supporting facilities and services to provide nursing care and clinical management of inpatients and that is planned, organized, operated, and maintained to function as a separate distinct unit.
2.19. Person -- An individual and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association, or political subdivision of the state.
2.20. Restraint -- Any device that limits movement by the patient and cannot be removed easily by the patient, or any chemical or drug used to limit movement by a patient, or to limit the mental capacity of a patient beyond the requirements of therapeutic treatment.
2.21. Rural Health Network -- For the purpose of this rule, a rural health network is an organization that contains at least one hospital that the state has designated as a critical access hospital and at least one hospital that furnishes acute care services. The members of the organization must enter into agreements regarding:
2.21.1. Patient referral and transfer;
2.21.2. The development and use of a communications system that may include telemetry and the electronic sharing of patient data; and
2.21.3. The provision of emergency and non-emergency transportation of patients among the members.
2.22. Seclusion -- The involuntary confinement of a person in a room or an area where the person is physically prevented from leaving.
2.23. Specialty Care/Critical Care Unit -- Specialized areas of the hospital which contain a grouping of single bed rooms or enclosures for critically and seriously ill patients requiring highly skilled nursing care, with frequent if not constant, nursing observation and interventions.
2.24. Swing Bed -- A bed that is approved for dual use and reimbursement under the federal Medicare program for both acute and extended care.
2.25. Unit Dose -- The ordered amount of a drug dispensed by a pharmacist in a dosage form ready for administration to a particular person by the prescribed route at the prescribed time.
2.26. Violation -- Failure to comply with W. Va. Code §16B-3-1, et seq. or any provisions of this rule. A violation constitutes a misdemeanor as set forth in W. Va. Code §16B-3-11.
W. Va. Code R. § 71-12-3 State Administrative Procedures
3.1. General Licensure Provisions.
3.1.1. A person may not establish, conduct, or maintain in West Virginia any hospital or extended care unit operated in conjunction with a hospital without first obtaining a license. Only one license is required for any person that operates any hospital or extended care unit operated in conjunction with a hospital at the same site.
3.1.2. A license is not transferable or assignable.
3.1.3. If the ownership of a hospital with a valid unexpired license changes, the new owner shall immediately apply for a new license. The new owner’s application for a license has the effect of a valid license for three months from the date the application is received by the Director.
3.1.4. Any change in location of the hospital, the total and types of beds or other major changes in the operation of the hospital requires the issuance of a new license.
3.1.5. The hospital or extended care unit operated in conjunction with a hospital shall:
3.1.5.a. Notify the Director in writing of any proposed change in the location of the hospital, the total and types of beds or operation of the hospital or extended care unit operated in conjunction with a hospital; and
3.1.5.b. Request an application form for a new license.
3.2. Application for License.
An applicant for license shall complete and submit an application to the Office of Health Facility Licensure and Certification on forms provided by the Director available online at ohflac.wvdhhr.org and shall pay the annual fee as required by W. Va. Code §16B-3-4. The name used on the application forms shall be the legal name of the hospital or extended care unit operated in conjunction with a hospital.
3.3. Issuance of License.
3.3.1. The Director will issue a license if:
3.3.1.a. The hospital or extended care unit operated in conjunction with a hospital is in compliance with this rule and applicable sections of W. Va. Code §16B-3-1, et seq.;
3.3.1.b. The hospital or extended care unit operated in conjunction with a hospital is in compliance with the rules of the State Fire Commission;
3.3.1.c. The hospital or extended care unit operated in conjunction with a hospital has submitted a complete application with all required documentation; and
3.3.1.d. In the case of a project that is subject to review under W. Va. Code §16-2D-1, et seq., the West Virginia Health Care Authority has issued a finding, after a final conformance review, that the completed project conforms to the terms of the certificate of need decision issued for the project.
3.3.2. The Director will issue a separate license for each separate and distinct location of the hospital or extended care unit operated in conjunction with a hospital.
3.3.3. The license will include:
3.3.3.a. The legal name of the hospital or extended care unit operated in conjunction with a hospital to which it applies;
3.3.3.b. The location of the hospital or extended care unit operated in conjunction with a hospital;
3.3.3.c. The maximum number of beds classified by type for which it is granted; and
3.3.3.d. The date the license is issued and the date the license expires.
3.4. Expiration and Renewal of License.
3.4.1. All licenses expire on the thirtieth day of June following the date of their issuance unless continued pursuant to the provisions of W. Va. Code §16B-3-4.
3.4.2. Licensed hospitals and extended care units shall annually complete and return to the Director applications for licensure renewal with the required license fee on or before the thirtieth day of April. The Director will provide licensure renewal forms to each licensed hospital and extended care unit by mail or other means he or she may consider proper.
3.4.3. The application for license shall specify the hospital’s and extended care unit’s proposed total bed capacity and the numbers of beds categorized by service provided, excluding bassinets.
3.4.4. The Director will renew a license if:
3.4.4.a. The hospital or extended care unit operated in conjunction with a hospital is in compliance with section 3.3. of this rule;
3.4.4.b. The hospital has received approval for all renovations or new building projects from the Director;
3.4.4.c. The hospital or extended care unit operated in conjunction with a hospital has submitted the appropriate fee according to the provisions of W. Va. Code §16B-3-4; and
3.4.4.d. The hospital has a paternity program as defined in W. Va. Code §16B-3-13.
3.5. Inspections.
3.5.1. The Director or his or her designee may enter the premises of any hospital or extended care unit operated in conjunction with a hospital to conduct inspections necessary to determine compliance with this rule.
3.5.2. The Director or his or her designee will notify a hospital or extended care unit operated in conjunction with a hospital of any violations of this rule.
3.5.3. A periodic licensure inspection is not required by the Office of Health Facility Licensure and Certification for any hospital that is exempted by the provisions of W. Va. Code §16B-3-5a.
3.5.4. The Director will grant an exemption from a periodic licensure inspection in the licensing year following accreditation when a hospital applies for this exemption by submitting with the yearly licensure application a complete copy of the accreditation report from the Joint Commission on Accreditation of Health Care Organization, the American Osteopathic Association, or any accrediting organization approved by the Centers for Medicare and Medicaid Services.
3.5.5. No exemption granted diminishes the right of the Office of Inspector General to conduct complaint investigations.
3.5.6. If the accreditation of a hospital is for a period longer than one year, the Director may conduct at least one licensure inspection of the hospital after the first year of accreditation and before the accreditation has expired and may conduct additional licensure inspections as considered necessary.
3.5.7. A hospital receiving a three-year accreditation shall conduct annual self-evaluation using the current year Accreditation Manual for Hospitals by the thirty-first day of March of each year that an inspection has not occurred.
3.5.8. A hospital shall incorporate the results of the self-evaluation in its quality improvement program and make a copy of the self-evaluation available to the Director upon request.
3.5.9. A hospital is not required to conduct self-evaluations for any licensing year when they are inspected by the Director.
3.5.10. Accreditation reports filed with the Director will be treated as confidential in accordance with W. Va. Code §16B-3-10.
3.6. Penalties.
3.6.1. After notice of an opportunity for a hearing, pursuant to the provisions of W. Va. Code §29A-5-1, et seq., the Director, in consultation with the Inspector General, may revoke the license of any hospital or extended care unit operated in conjunction with a hospital found in violation of this rule.
3.6.2. The licensee shall return a revoked license to the Director immediately upon receiving notice of its revocation. If a hospital or extended care unit operated in conjunction with a hospital voluntarily ceases operation, it shall return its license to the Director.
3.6.3. If the Director revokes a license, the Director will consider a new application for a license when evidence has been furnished that the conditions upon which the revocation was based have been corrected.
3.7. Miscellaneous Requirements.
3.7.1. A hospital may not change its name without submitting a new licensure application identifying the hospital by the new name. The Director will issue a new license with the hospital identified by the new name.
3.7.2. All hospitals and extended care units operated in conjunction with a hospital shall comply with applicable rules of the State Fire Commission, the Air Quality Board, and the Department of Environmental Protection Solid or Hazardous Waste Unit.
3.7.3. The hospital or extended care unit shall post its license in a conspicuous place on the licensed premises.
3.7.4. A hospital shall not admit more patients than the number of beds for which it is licensed except in the case of public catastrophe or emergency and then only as a temporary measure.
W. Va. Code R. § 71-12-4 Administration of the Hospital
4.1. Governing Authority.
4.1.1. The governing authority or owner is the highest authority responsible for the management and control of the hospital including employment of a hospital administrator, a licensed nursing home administrator when applicable and appointment of medical staff. The administrator is responsible for the direction and control of the hospital operation in accordance with policies established by the governing authority. The medical staff is responsible for the quality of medical care provided and for submitting reports on the quality of this care to the governing body of the hospital at defined intervals.
4.1.2. The governing authority is legally responsible for the management and control of the hospital. In the discharge of its duties, the governing authority exercises its responsibility for the care of patients through the medical staff. The governing authority is responsible for the establishment of policies and compliance with the requirements of this rule.
4.1.3. The governing authority shall adopt bylaws, subject to amendment, which require it to:
4.1.3.a. Appoint members to the medical staff;
4.1.3.b. Approve the bylaws and regulations of the medical staff;
4.1.3.c. Define the committees of the governing authority and their functions and responsibilities;
4.1.3.d. Develop and maintain a formal liaison with the medical staff;
4.1.3.e. Appoint a full-time administrator and delegate to him or her executive authority and responsibility;
4.1.3.f. Maintain an up-to-date file of all medical and ancillary staff licensed, registered, or certified by the appropriate agency of the state;
4.1.3.g. Provide for the proper control of all assets and funds, including requiring annual audits;
4.1.3.h. Provide for an assessment of all hospital clinical departments and functions provided directly or under contract through review and approval of the hospital’s quality improvement reports at intervals defined by the governing body, but at least yearly;
4.1.3.i. Determine the scope of services to be offered by the hospital; and
4.1.3.j. Ensure the hospital is meeting all state requirements, inclusive of certificate of need, for the addition or termination of services, and notification of the Office of Health Facility Licensure and Certification of the addition or termination of services.
4.1.4. The governing authority shall record, sign, and retain in the hospital as a permanent record minutes of all of its meetings and the meetings of all of its committees, including a record of attendance for a minimum of five years.
4.1.5. The governing authority shall ensure for the provisions of a safe physical plant, equipped, and staffed to maintain adequate facilities and services for hospital patients.
4.1.6. The governing authority shall ensure there is a system in place to prevent, control, investigate, and resolve, through appropriate actions, infections, and communicable diseases within the hospital.
4.1.7. The governing authority is responsible for the effective operation of the patient grievance process.
4.2. Hospital Administrator.
4.2.1. The governing authority shall appoint a hospital administrator qualified by education and experience, who is responsible for:
4.2.1.a. Directing, coordinating, and supervising the administration of the hospital;
4.2.1.b. Carrying out the policies of the governing authority; and
4.2.1.c. Ensuring compliance with the rules of the medical staff as established in subsection 11.9. of this rule.
4.2.2. The administrator shall serve as liaison to the governing body, medical staff and other professional and supervisory staff.
4.3. Patient Rights.
4.3.1. The administrator shall ensure that the hospital informs each patient, family members, or interested persons of:
4.3.1.a. The patient’s rights in advance of furnishing care; and
4.3.1.b. The process for submission of a patient grievance. This process should include informing the interested parties of the name of the hospital contact person and the address and telephone number of the Office of Health Facility Licensure and Certification.
4.3.2. The hospital shall develop and implement a written policy and procedure designating how each patient shall be informed of his or her rights in accordance with the hospital’s specific manner of operation.
4.3.3. Patient rights include but are not limited to the following:
4.3.3.a. The right to be informed of his or her rights, to participate in the development and implementation of his or her plan of care and to make decisions regarding that care;
4.3.3.b. The facilitation and the communication of information to the patient, family, other legally responsible party, or a combination of the foregoing regarding understanding and participating in the plan of care;
4.3.3.c. The right to formulate advance directives and to have those directives followed;
4.3.3.d. The right to privacy and to receive care in a safe setting;
4.3.3.e. The right to be free from all forms of abuse or harassment;
4.3.3.f. The right to be free from the use of seclusion and restraints of any form that are not medically necessary or are used as a means of coercion, discipline, convenience, or retaliation by staff;
4.3.3.g. The right to confidentiality of his or her medical records as described in section 7.2. of this rule; and
4.3.3.h. The right to access information contained in his or her clinical records within a reasonable time, as defined by hospital policy.
4.3.4. The corporation shall provide, in a timely manner, skilled interpreters and personnel skilled in communicating with vision and hearing-impaired individuals either by direct employment with the corporation or by employment under a contract with the corporation.
4.3.5. The hospital shall establish a process for prompt resolution of patient grievances and shall inform each patient of the person to contact to file a grievance.
4.3.5.a. The grievance process shall specify time frames for review of the grievance and the provision of a response.
4.3.5.b. In its resolution of the grievance, the hospital shall provide the patient with written notice of its decision that contains the name of the hospital contact person, the steps taken on behalf of the patient to investigate the grievance, the results of the grievance process, and the date of completion of the investigation.
4.3.6. A licensed hospital shall permit patient visitation privileges for non-relatives unless otherwise requested by the patient or legal designee. For the purposes of this section, the term “legal designee” means and includes those persons eighteen years of age or older, appointed by the patient to make health care decisions for the patient.
4.3.7. A hospital shall post signage in every patient room, patient care area or department, and staff rest area information outlining the process for reporting patient safety concerns via the facility’s designated internal reporting mechanism and the process for reporting unresolved patient safety concerns or complaints to the Office of Health Facility Licensure and Certification. The posting shall include the address and telephone number for the Office of Health Facility Licensure and Certification. Signage color and text shall conform to the Office of Safety and Health Administration regulations for safety instruction signs as provided in 29 C.F.R. § 1910.145. Nothing in this subdivision precludes any patient, patient representative, or health care provider from making a good faith report pertaining to patient safety concerns and/or alleged wrongdoing or waste to any other appropriate authorities as provided in W. Va. Code §16-39-1, et seq.
W. Va. Code R. § 71-12-5 Physical Facilities, Equipment, and Related Items
5.1. General Requirements.
5.1.1. The provisions of this section shall apply to all hospitals. If the Director determines that changes necessary for compliance with this rule would create undue hardship for hospitals in existence at the time this rule becomes effective, the hospital may be governed by rules that were in effect at the time of the hospital or an addition or renovation was completed.
5.1.2. The following documents are adopted as construction, equipment, physical facility, and related procedural standards for all existing hospitals, all new construction and any additions, alterations, renovations, or conversions of existing buildings:
5.1.2.a. The relevant sections of the 2022 edition of The Guidelines for Design and Construction of Hospitals and Outpatient Facilities as recognized by the American Institute of Architects Academy of Architecture for Health with assistance from the United States Department of Health and Human Services shall be used as planning standards;
5.1.2.b. The National Fire Protection Association codes and standards relevant to Health Care Facilities including the 2012 edition of the N.F.P.A. 70 National Electric Code and the 2012 edition of N.F.P.A. 99 Standard for Health Care Facilities adopted by the Centers for Medicare and Medicaid Services;
5.1.2.c. The hospital shall have in place a surgical smoke evacuation system consistent with the standards established in the 2024 edition of the N.F.P.A. 99, Standard for Health Care Facilities adopted by the Centers for Medicare and Medicaid Services; and
5.1.2.d. Applicable rules of the State Fire Commission including the State Building Code. When standards of this rule exceed requirements of the State Fire Commission including the State Building Code, this rule takes precedence.
5.1.3. The hospital shall comply with the guidelines set forth in the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq.
5.1.4. Door widths of all patient rooms, delivery rooms, and any rooms where entrance of an assembled bed may be required shall be at least three feet, eight inches.
5.1.5. No door shall open into the corridor except those on rooms used for janitorial purposes or toilet room doors. Bathroom doors shall open outward into patient rooms.
5.1.6. Corridors, stairways, and elevators shall be of a width and design that shall easily accommodate the removal of patients in a bed, including beds with traction equipment, and shall be constructed and maintained in compliance with all safety regulations and requirements. Use of these areas for purposes other than for which they were originally designed shall not be permitted at any time.
5.1.7. Handrails shall be installed in all corridors and adjacent to ramps, inclines, and passageways used by patients in an extended care unit operated in conjunction with a hospital or in any hospital or hospital unit specializing in chronic or convalescent care.
5.1.8. Screens shall be provided for all exterior openings that are left open for extended periods. Where provided, screen doors shall open outward and shall be self-closing.
5.1.9. Operable windows shall have screens and safety design features.
5.1.10. The hospital shall have a system in place to ensure routine biomedical equipment checks and maintenance for all applicable medical equipment.
5.2. Site Selection.
5.2.1. The site of any hospital shall, except in circumstances approved by the Director, be located in relation to the center of population, close to where patients live, where competent medical and surgical consultation is readily available and where employees can be recruited and retained. There shall be good drainage, electricity, telephone, public transportation, and other necessary facilities available on or near the site.
5.2.2. Local building codes and zoning restrictions shall be observed. Information as to zoning restrictions is available from local authorities. Where local codes or regulations permit lower standards than required by this rule, the standards contained in this rule take precedence.
5.2.3. Site conditions shall comply with the relevant sections of the 2014 edition of The Guidelines for Design and Construction of Hospitals and Outpatient Facilities as recognized by the American Institute of Architects Academy of Architecture for Health.
5.2.4. The hospital shall request, in writing, an inspection of a proposed hospital site and obtain approval for construction from the Director before beginning construction.
5.3. New Construction.
5.3.1. Hospitals constructed subsequent to the effective date of this rule shall comply with the General and Psychiatric Hospital sections, as applicable, of the 2022 edition of Guidelines for Construction and Equipment of Hospital and Medical Facilities.
5.3.2. The hospital shall submit to the Director for review, complete construction drawings and specifications for any hospital construction project which alters a floor plan, impacts life safety or requires approval under W. Va. Code §16-2D-1, et seq., prior to beginning work on the project. An architect, engineer, or both registered to practice in West Virginia, shall prepare and sign the drawings and specifications including architectural, life safety, structural, mechanical, and electrical drawings and specifications.
5.4. Additions and Renovations.
5.4.1. Additions and renovations or alterations of any hospital which are begun after the effective date of this rule shall comply with the General and Psychiatric Hospital sections, as applicable, of the 2022 edition of Guidelines for Design and Construction of Hospitals and Health Care Facilities.
5.4.2. Prior to starting any renovations, the facility shall complete an infection control and safety risk assessment and shall develop a plan to control exposure of patients, employees, and the public. This plan shall be implemented during construction phases.
5.4.3. Minor renovations that do not alter floor plans or impact life safety or require approval under W. Va. Code §16-2D-1, et seq., may not require approval from the Office of Health Facility Licensure and Certification or the services of an architect.
5.4.4. The hospital shall submit to the Director for review, complete construction drawings and specifications for any hospital construction project which alters a floor plan, impacts life safety or requires approval under W. Va. Code §16-2D-1, et seq., prior to beginning work on the project. An architect, engineer, or both, registered to practice in West Virginia, shall prepare and sign the drawings and specifications including architectural, life safety, structural, mechanical, and electrical drawings and specifications. Minor renovations which alter floor plans may not require the services of an architect and a full set of drawings. However, an actual as built drawing is required for the specific area to be renovated. The approval of minor renovations will be determined by the Director.
5.4.5. Any existing building, or portions of that building converted for use as a hospital shall comply with section 5 of this rule whether in use as a hospital, as of the effective date of this rule.
W. Va. Code R. § 71-12-6 Operations Services
6.1. Safety, Sanitation, Housekeeping and Maintenance.
6.1.1. The hospital’s water supply shall comply with the Department of Health Legislative Rule, Public Water Systems, 64CSR3, and Cross-Connection Control and Backflow Prevention, 64CSR15.
6.1.2. Sewage disposal shall comply with the Department of Health Legislative Rule, Sewer Systems, Sewage Treatment Systems, and Sewage Tank Cleaners, 64CSR9.
6.1.3. The overall condition of the physical plant shall be maintained to assure and promote safe, clean, and sanitary conditions.
6.1.4. Accumulated waste material shall be removed daily or more frequently as necessary.
6.1.5. The grounds shall be kept in a sanitary, safe, and presentable condition.
6.1.6. The premises shall be kept free from rodent and insect infestation.
6.1.7. There shall be sufficient supplies and equipment, properly stored and conveniently located, to permit frequent cleaning of floors, walls, woodwork, windows, and screens, and to facilitate all necessary building and ground maintenance.
6.1.8. Stairwells and corridors shall be kept free from obstruction at all times.
6.1.9. All garbage shall be stored and disposed of in a manner that shall not permit the transmission of disease, create a nuisance, or provide a breeding place for insects and rodents.
6.1.10. All garbage containers shall be watertight, nonabsorbent, rodent proof, and have tight-fitting covers.
6.1.11. Garbage containers shall be emptied at frequent intervals and those containers that do not use an auxiliary liner shall be thoroughly washed and sanitized each time they are emptied.
6.1.12. The hospital shall comply with the Department of Health Legislative Rule, Infectious Medical Waste, 64CSR56.
6.2. Lighting.
6.2.1. All rooms and areas in the hospital shall be provided with sufficient artificial illumination to enable personnel to properly carry out procedures normally performed.
6.2.2. Emergency lighting shall be provided for exits, stairs, corridors, nurseries, emergency rooms, delivery rooms, operating rooms, soiled utility rooms, medication preparation areas, and other areas necessary for safe effective patient care.
6.2.3. Emergency lighting shall be supplied by an automatic emergency generator or the equivalent and each shall be tested routinely.
6.2.4. The dates on which the testing is conducted shall be recorded in a permanent log for a minimum of five years.
6.3. Medical Gas Systems and Indoor Air Quality
6.3.1. All hospitals shall provide medical gas systems in accordance with the 2012 edition of N.F.P.A. 99 and section 5 of this rule.
6.3.2. Medical gas systems shall be inspected and tested routinely as defined by hospital policy.
6.3.3. All hospitals shall provide air systems that are virtually free of dust, dirt, odor, chemical, and radioactive pollutants. Standards as set forth in the 2022 edition of the Guidelines for Design and Construction of Hospitals and Healthcare Facilities, A.A.S.H.R.A.E., American Society of Heating, Refrigerating and Air-Conditioning Engineers, Inc., or both shall be used.
6.3.4. Facilities shall have in place a management plan for all indoor air systems which shall provide information about filters, supply air including outdoor air, return air including exhaust air, pressure relationships between critical areas, space temperatures, and relative humidity levels in critical areas.
6.4. Laundry Services.
6.4.1. The provision of laundry services shall comply with section 5 of this rule.
6.4.2. The hospital shall make provisions for the proper cleaning of linens with special provisions for handling and decontamination of contaminated linens.
6.4.3. Hospitals maintaining and operating a laundry within the hospital building shall provide ventilation for the elimination of steam and odors and proper insulation to prevent the transmission of noise to patient areas.
6.4.4. The laundry shall have:
6.4.4.a. Separation of clean and soiled linen, receiving, storing, and sorting areas with facilities to wash hands;
6.4.4.b. Soiled linen processing areas separate from patient care, food preparation, clean supply, and equipment storage areas;
6.4.4.c. Washing, extracting, drying, and ironing areas equipped with all necessary safety appliances and meeting all sanitary requirements; and
6.4.4.d. A storage area for laundry supplies.
6.4.5. When an off-site commercial laundry service is used, there shall be:
6.4.5.a. A soiled linen collection and storage area separate from patient care areas, food preparation, clean supply, and equipment areas; and
6.4.5.b. A central clean linen storage area.
6.4.6. Contaminated newborn nursery linen shall be separately stored and washed as shall linen contaminated with radioactive material.
6.4.7. A supply of clean linen shall be provided sufficient for the hospital’s capacity.
6.4.8. Soiled linen shall be bagged for collection at the site of use in bags that prevent leakage.
6.4.9. All personnel involved in the collection, transportation, sorting, and washing of soiled linen shall:
6.4.9.a. Receive periodic job-related training, as defined by hospital policy;
6.4.9.b. Have access to hand washing facilities; and
6.4.9.c. Use appropriate personal protective equipment.
6.5. Central Sterilization and Supply.
6.5.1. The hospital shall provide for the decontamination and sterilization of reusable equipment and supplies for all areas of the hospital.
6.5.2. If the hospital practices in-house sterilization, it shall have a central sterilizing and supply room to prepare, sterilize, store, and dispense sufficient sterile supplies and equipment to all units of the hospital.
6.5.3. The hospital shall have policies and procedure, using acceptable clinical standards, for the decontamination and reprocessing of supplies.
6.5.4. A cabinet or other suitable enclosed space shall be provided for storing sterile equipment and supplies in a convenient and orderly manner.
6.6. General Storage:
6.6.1. All clean and sterile storage shall be concentrated in one area on each unit to the extent possible. Mechanical maintenance items may be in a separate area.
6.6.2. All soiled storage shall be concentrated in one area on each unit separate from clean storage.
6.6.3. Hand washing facilities shall be in or convenient to work areas.
6.6.4. Separate storage areas shall be provided in each applicable hospital unit for flammable materials such as oxygen gases.
W. Va. Code R. § 71-12-7 Paramedical Storage
7.1. Pharmaceutical Service.
7.1.1. A licensed pharmacist shall be responsible for developing, supervising, and coordinating all pharmacy services, including the distribution of samples, provided at the hospital.
7.1.2. The pharmacist may be employed on a full-time, part-time, or consulting basis.
7.1.3. All compounding, packaging, and dispensing of drugs and biologicals shall be under the supervision of a pharmacist and performed consistent with federal and state laws.
7.1.4. All drugs, including drugs stored outside the pharmacy, shall be stored in locked cabinets, medication rooms, or medication carts approved by the Director of Pharmacy. This shall ensure the integrity of the medications and safety for the patients and the general population. It shall further ensure medications are only accessible to authorized personnel according to hospital policy.
7.1.5. When a pharmacist is not available, drugs and biologicals may be removed from the pharmacy or storage area only by personnel authorized in accordance with federal and state law and hospital and medical staff policies.
7.1.6. Drugs and biologicals not specifically prescribed as to a time or number of doses shall be stopped after a reasonable period of time which is pre-determined by medical staff policy.
7.1.7. All medication storage areas shall have a designated area or compartment for the separate storage of external medications.
7.1.8. The medication preparation area shall be clean, well illuminated and have adequate space for the storing and preparation of medications.
7.1.9. Narcotics and controlled drugs which are required to conform to federal or state regulations or rules shall be kept within a secure storage area accessible only to authorized personnel.
7.1.10. Surplus narcotics or narcotics with an expired date shall be disposed of according to applicable federal and state regulations.
7.1.11. A record shall be maintained, or a system developed, to track the receipt and distribution of controlled drugs.
7.1.12. Outdated, mislabeled, or otherwise unusable drugs and biologicals shall not be accessible for patient use.
7.1.13. Except for medication packaged for unit doses, all unused medications shall be discarded when orders have been discontinued or the patient has been discharged from the hospital.
7.1.14. Drug administration errors, adverse drug reactions, and incompatibilities shall be immediately reported to the attending practitioner and Director of Pharmacy and investigated using current and readily accessible drug and patient information. This information shall be evaluated as part of the hospital quality improvement program.
7.1.15. The medical staff shall establish a formulary system and review it as necessary.
7.1.16. The Director of Pharmacy shall provide a system for the recognition and treatment of any drug/drug product or food/drug interactions and incompatibilities.
7.1.17. Drugs and biologicals shall be prepared and administered in accordance with:
7.1.17.a. Federal and state law;
7.1.17.b. The orders of the practitioner or practitioners responsible for the patient’s care; and
7.1.17.c. Accepted standards of practice.
7.2. Medical Records Department and Information System.
7.2.1. The hospital shall maintain a medical records department and information system sufficient to support the maintenance of patient records, including computer generated medical records, and quality improvement activities. The medical records department shall be under the supervision of a person qualified by training and experience as defined by hospital policy.
7.2.2. The hospital shall ensure that a coding and indexing system is used that allows for retrieval of medical records by diagnosis and procedures.
7.2.3. The hospital shall employ adequate personnel to ensure prompt completion, filing, and retrieval of records.
7.2.4. The hospital shall maintain a medical record for every individual evaluated or treated in the hospital on an inpatient and an outpatient basis.
7.2.5. The hospital shall use a system of author identification and record maintenance that ensures the integrity of the authentication and protects the security of all record entries.
7.2.6. The hospital shall preserve medical records, including records of patients treated in the emergency room or outpatient department, for a minimum of five years in their original form or in a legally reproduced form.
7.2.7. The hospital shall have procedures in place for ensuring the confidentiality of patient records and for ensuring that only authorized personnel can gain access to or alter patient records.
7.2.8. The hospital shall only release originals or copies of medical records in accordance with federal and state laws or upon receipt of an order from a court of competent jurisdiction.
7.2.9. The hospital shall provide copies of medical records and any other pertinent data within 48 hours of a written request by the Office of Health Facility Licensure and Certification.
7.2.10. The inpatient medical record shall include at a minimum the following:
7.2.10.a. Documentation to justify admission and support the diagnosis;
7.2.10.b. Patient identification;
7.2.10.c. The date of admission and discharge;
7.2.10.d. Advance directives information;
7.2.10.e. A history of present illness;
7.2.10.f. A personal and family history;
7.2.10.g. A physical examination completed within 30 days prior to admission or within 48 hours after admission. If the history and physical was performed within the 30 days prior to admission there shall be an updated note addressing the patient’s current status, any changes in the patient’s status, or both. This note shall be on or attached to the history and physical. A history and physical performed within seven days prior to admission does not require an updated note;
7.2.10.h. Practitioner’s orders;
7.2.10.i. Examinations and consultations;
7.2.10.j. Clinical laboratory and imaging results;
7.2.10.k. Provisional or working diagnosis;
7.2.10.l. Treatments and medications provided;
7.2.10.m. Surgical reports including operative and anesthesia records;
7.2.10.n. Gross and microscopic pathological findings;
7.2.10.o. Progress and nurses’ notes;
7.2.10.p. Any assessments implemented;
7.2.10.q. Final diagnosis and condition on discharge;
7.2.10.r. Multi-disciplinary discharge planning and the physician’s discharge summary;
7.2.10.s. Properly executed informed consent forms for procedures and treatments specified by the medical staff, or by federal or state law, if applicable, to require written patient consent;
7.2.10.t. Death certificate when the hospital considers it necessary; and
7.2.10.u. Autopsy findings, if an autopsy is performed.
7.2.11. The hospital shall maintain a medical record for each newborn infant separate from the mother’s record.
7.2.12. A short form medical record may be used for patients who are in the hospital less than 48 hours except in the case of maternity and newborn infants. The short form shall contain a minimum of the following:
7.2.12.a. Documentation of a history and physical;
7.2.12.b. Diagnosis; and
7.2.12.c. Any treatment and services provided.
7.2.13. All entries shall be legible and shall be authenticated and dated promptly by the person, identified by name and discipline, who is responsible for ordering, providing, or evaluating the service furnished.
7.2.14. Authentication may include signatures which may be electronic.
7.2.15. All clinical information pertaining to each patient shall be filed in the patient’s medical record.
7.2.16. All orders for medication or treatment shall be recorded in writing or validated by a secure electronic system and filed in the patient’s medical record or appropriately filed in the patient’s electronic record. The use of signature stamps or electronic identification is acceptable when a mechanism is in place to ensure the stamp or identifier is limited to use by the identified person only.
7.2.17. The hospital shall ensure that verbal and telephone orders shall be given to registered professional nurses and other licensed or registered health care professionals, in their area of training and professional expertise, when authorized by the medical staff policies: Provided, That any verbal or telephone order received by a licensed or registered health care professional shall also be communicated to the registered professional nurse responsible for the overall care of that patient.
7.2.18. Physicians shall countersign and date all verbal and telephone orders at the next hospital visit in which a patient visit occurs and an entry is written in the chart.
7.2.19. A plan of care shall be developed and maintained for each patient through the coordinated efforts of the registered professional nurses and other health care professionals involved in the care of the patient. The plan of care shall be maintained as part of the patient’s medical record.
7.2.20. Only abbreviations approved by the medical staff shall be used in medical records.
7.2.21. Medical records shall be completed, authenticated, and signed by the physician or dentist within 30 days following the discharge of the patient.
7.2.22. The hospital shall report a complete list of all births, deaths, and fetal deaths occurring within each month in licensed hospitals by the tenth of the following month on forms approved by the Director or on a comparable computer printout approved by the Director to the state registrar of vital statistics.
7.2.23. The hospital shall send all completed birth certificates to the state registrar of vital statistics within 10 days following the birth.
7.2.24. Licensed hospitals shall comply with the Department of Health Legislative Rules, Reportable Diseases, Events, and Conditions, 64CSR7; AIDS-Related Medical Testing and Confidentiality, 64CSR64; and any other applicable rules regarding the reporting of diseases, infections, or laboratory test results to the state.
7.2.25. The hospital shall have a procedure to provide information to the cancer registry as defined in W. Va. Code §16-5A-2a.
7.2.26. In the event of closure, a hospital shall make arrangements for medical record retention and retrieval. The hospital shall provide written documentation of this arrangement to the Director.
7.2.27. The hospital shall have a mechanism in place to supply to any patient who has received services from the hospital, whether on an inpatient or outpatient basis, upon request, one itemized statement which describes with specificity the exact service or medication for which a charge is assessed to the patient at the institution, at no additional cost to the patient. In the event of the death of the patient, an authorized individual to be determined on a case by case basis may make the request and shall receive the statement at no additional cost.
7.3. Dietetic Services.
7.3.1. The hospital dietetic service shall comply with the Department of Health Legislative Rule, Food Establishments, 64CSR17.
7.3.2. There shall be an organized dietetic service, planned, equipped, and staffed to meet the nutritional needs of the patient population.
7.3.3. The hospital shall have a full-time employee who:
7.3.3.a. Serves as supervisor of the dietetic services;
7.3.3.b. Is responsible for daily management of the dietetic services; and
7.3.3.c. Is qualified by experience or training.
7.3.4. Provisions shall be made for continued in-service training of the designated dietetic service supervisor.
7.3.5. The food services department shall be under the direction of a full-time dietician or a person with training and experience in food service administration. Only a qualified dietitian or other person with suitable training may direct the food services department.
7.3.6. Responsibilities of the Director of the Dietetic Services shall include:
7.3.6.a. Approval of menus;
7.3.6.b. Establishment of policies and procedures;
7.3.6.c. Patient and family counseling; and
7.3.6.d. Maintenance of liaison with other services.
7.3.7. There shall be a qualified dietitian available on a full-time, part-time, or a consultant basis. A qualified dietician shall be registered or eligible for registration with the Commission on Dietetic Registration of the Academy of Nutrition and Dietetics and be licensed in the state of West Virginia by the West Virginia Board of Licensed Dietitians.
7.3.8. The dietetic service department shall maintain records which include the following:
7.3.8.a. A staffing schedule for all persons employed full-time or part-time in the food service department indicating the number of hours each employee works weekly; and
7.3.8.b. A job description for each type of food service department position with verification that each employee has been familiarized with his or her duties and responsibilities.
7.3.9. The dietetic service department shall post written and dated menus planned at least 14 days in advance for both therapeutic and general diets in appropriate places in the food preparation area and be available to administrative personnel.
7.3.10. Menus, as served, with all substitutions noted, shall be filed in the dietetic service department for at least four weeks.
7.3.11. All therapeutic diets, including between meal nourishments, shall be prepared and served as recommended by a qualified dietitian.
7.3.12. A current therapeutic diet manual approved by the dietitian and medical staff shall be readily available to the medical, nursing, and dietetic service personnel.
7.3.13. The hospital shall employ adequate personnel to perform the functions of the dietetic service department.
7.3.14. The hospital shall provide procedures to prevent the contamination of meals and other items prepared or served by the dietetic service department employees.
7.3.15. The hospital shall provide an in-service training program designed to meet the needs of dietetic service employees, including training in proper food sanitation practices and personal hygiene.
7.3.16. The hospital may contract with an outside company for the dietetic service if the outside company has a qualified dietitian who serves the hospital on a full-time or part-time consulting basis, and if the company complies with the Department of Health Legislative Rule, Food Establishments, 64CSR17.
7.3.17. Dry or staple food items shall be stored at least six inches off the floor in well-ventilated rooms which are not subject to contamination by sewage, water backflow, contaminated water, leakage, rodents, or vermin.
7.3.18. Potentially perishable foods shall be maintained at a temperature of 45 degrees Fahrenheit or below. Refrigerators and storerooms used for perishable foods shall be equipped with reliable thermometers.
7.3.19. All ice used in contact with food or drink shall comply with the Department of Health Legislative Rule, Public Water Systems, 64CSR3.
7.3.20. The dietetic service department shall retain a sample of potentially hazardous foods from the menu of each meal under adequate refrigeration for a period of at least 24 hours after serving. By this method, proper samples of food are available for laboratory examination in the event of a food borne disease outbreak.
7.3.21. Poisonous and toxic materials shall bear warning labels, be stored separately from food or equipment used on preparing and serving food and shall be used only in ways that shall neither contaminate food nor be hazardous to employees.
7.3.22. Food being served or transported shall be protected from contamination and held at the proper temperature in clean containers, cabinets, or serving carts.
7.3.23. Garbage and refuse shall be placed in impervious containers equipped with tightly fitting covers.
7.3.24. Garbage containers shall be stored in a safe area or refrigerated space pending removal and shall be removed from the premises and sanitized daily.
7.4. Infection Control.
7.4.1. The hospital shall provide a sanitary environment to avoid sources and transmission of infections and communicable diseases.
7.4.2. The hospital shall have an active surveillance and education program for the prevention, early detection, control, and investigation of infections and communicable diseases.
7.4.3. The program shall include implementation of a nationally recognized system of infection control guidelines.
7.4.4. The program shall be both hospital-wide and program-specific and enforced by the individual designated by the medical staff.
7.4.5. The hospital shall designate a person or persons as infection control officer or officers to develop and implement policies governing control of infections and communicable diseases for patients and personnel.
7.4.6. The infection control professional or designee shall maintain a log of incidents related to infections and communicable diseases.
7.4.7. The hospital administrator, medical staff, and the Director of Nursing shall ensure that the quality improvement program and training programs address problems identified by the infection control officer or officers and be responsible for the implementation of successful corrective action plans in affected problem areas.
W. Va. Code R. § 71-12-8 Patient Care Units or Departments
8.1. General Requirements.
8.1.1. The hospital shall develop and maintain all patient care units or departments in accordance with section 5 of this rule.
8.1.2. All patient care areas and units shall be segregated from areas used by the public or occupied by the hospital ancillary facilities, including adjunct diagnostic and treatment areas.
8.1.3. All areas in which patient care is rendered shall maintain or have easy access to an emergency cart for use in the event of patient respiratory or cardiac arrest. The contents of this cart, such as medications and supplies shall be determined by hospital policy. The frequency of monitoring of the contents of the emergency carts shall be determined by nursing service policies and procedures.
8.1.4. The hospital shall develop protocols for implementation of respiratory and cardiac arrest care on a 24-hour basis using all necessary staff throughout the hospital including any available physicians for immediate emergency response.
8.1.5. Each nursing unit and patient service department shall maintain a current policy and procedure manual governing the specific care provided by that unit or department. The manual shall be reviewed and revised at least every three years.
8.2. Patient Care and Nursing Unit.
8.2.1. The hospital shall provide private rooms to meet the needs of patients and programs of the hospital. There shall be no more than four beds in each patient room in existing construction. In construction after the approval date of this rule, there may be no more than two patient beds in each room.
8.2.2. No sleeping area may be located below ground level.
8.2.3. Each one bedroom shall contain a minimum floor area in existing construction of 100 square feet or 120 square feet in new construction. Each multiple bedroom shall contain a minimum floor area of 80 square feet for each bed in existing construction and 100 square feet for each bed in new construction.
8.2.4. Each patient room shall have direct entry from a corridor.
8.2.5. Artificial light shall be provided and include general illumination and other sources of illumination sufficient for reading, observations, examinations, and treatments.
8.2.6. All new or renovated facilities shall have a night light control switch located at the point of entry into patient rooms.
8.2.7. Patient rooms shall have movable furnishings. The Director may make exceptions as needed regarding all furnishings for psychiatric hospitals. Patient rooms shall be equipped with the following:
8.2.7.a. An adjustable bed with side rails;
8.2.7.b. A cabinet or bedside table;
8.2.7.c. An over-bed table;
8.2.7.d. A wastepaper receptacle with impervious disposable liner or a disposable waste receptacle; and
8.2.7.e. Personal care items such as water pitcher, cups, emesis basin, and oral and personal hygiene products as necessary.
8.3. Obstetric Service.
8.3.1. Obstetric facilities, including accommodations for mothers and infants, and the delivery suites, shall be a self-contained unit and shall be segregated from all other parts of the hospital.
8.3.2. The supervision of the obstetric service shall be under the direction of a professional registered nurse licensed in West Virginia with experience in obstetric care.
8.3.3. The hospital shall establish specific policies for the training and competency of nursing personnel from other areas of the hospital working in the obstetric and neonatal care areas, or nursing personnel from the obstetric and neonatal care areas working on other units of the hospital.
8.3.4. Nursing personnel shall not move between perinatal and non-perinatal units without training and orientation to these areas.
8.3.5. The obstetric/delivery unit, the obstetric nursing unit, and the nursery shall be designed so that prenatal, natal, and postnatal processes are a continuous, safe, and satisfying experience for mother and infant.
8.3.6. Caesarean deliveries shall be performed in a caesarean delivery room suite or in the hospital’s operating room.
8.3.7. The Caesarean delivery room shall be properly furnished, stocked, and maintained at all times to perform Caesarean delivery procedures.
8.3.8. As determined by medical staff, there shall be equipment for general anesthesia and a supply of drugs and anesthetics ordinarily needed for spinal, epidural, pudendal anesthesia, or a combination of the foregoing available at all times.
8.3.9. A heated bassinet or isolette shall be ready for the reception and care of the newborn infant in all delivery suites.
8.3.10. There shall be supplies and equipment for resuscitation of mother and newborn.
8.3.11. Staff shall maintain current certification in neonatal resuscitation.
8.3.12. The hospital shall establish and make available in all delivery suites a means of identification for each infant, approved by the medical staff, which shall be applied at the time of delivery in the delivery suite.
8.3.13. The medical staff or designee shall instill in the eyes of the newborn baby medications approved by the medical staff for the prevention of inflammation, according to current standards of practice.
8.3.14. Birthing rooms, labor/delivery/recovery rooms, or both are considered as delivery rooms for the purposes of this rule.
8.3.15. The hospital shall include the beds that are used for postnatal care in the count of the hospital’s licensed beds.
8.3.16. Noninfectious patients may be admitted to the obstetrics unit according to policies and procedures for all services approved by the medical staff. If a patient develops an elevated temperature, she shall be moved to another location within the hospital.
8.4. Nursery.
8.4.1. A separate nursery shall be available for the care of newborn infants. The nursery shall not be used for any other purpose and shall be conveniently located in reference to the rooms of the mothers. The hospital shall provide postnatal provisions for the safety and security of the infant.
8.4.2. Nurseries shall provide 24 square feet of floor space per bassinet with at least 12 inches between bassinets.
8.4.3. A separate bassinet for each infant shall be provided, except in the case of multiple births in accordance with hospital policy.
8.4.4. In the case of each viable delivery, infants shall be weighed on accurate infant scales provided for each nursery.
8.4.5. There shall be other equipment and supplies essential for the care of newborns, including, but not limited to, isolettes and oxygen.
8.4.6. Commercially prepared formula shall be handled and prepared in a manner consistent with the requirements of the Department of Health Legislative Rule, Food Establishments, 64CSR17.
8.4.7. The hospital shall provide immediate segregation and isolation of any infant with a communicable infection.
8.4.8. All equipment shall be maintained separately for each infant.
8.4.9. The hospital shall furnish infant clothing and diapers.
8.4.10. The hospital shall include in the discharge planning process, instructions to the infant’s care givers for feeding and care of the infant.
8.4.11. Air conditioning, heating and ventilation systems shall have supply delivered from ceiling outlets and return air shall be from the floor level.
8.5. Surgical Department.
8.5.1. The surgical department shall be under the direction of a physician licensed in West Virginia by the West Virginia Board of Medicine or West Virginia Board of Osteopathic Medicine and experienced in the practice of surgery. The surgeon or his or her designee shall be available to the hospital staff at all times.
8.5.2. The surgical suites shall be self-contained units under the supervision of a qualified registered professional nurse or physician experienced in the practice of surgery and licensed in West Virginia.
8.5.3. Access to the surgical area shall be limited to authorized personnel only.
8.5.4. There shall be no through traffic to any other part of the hospital.
8.5.5. The surgical suites shall be separated physically from the delivery unit and emergency unit.
8.5.6. The hospital shall maintain a current list of surgical privileges for all practitioners conducting surgical procedures both in the surgery suite and the area where the scheduling of surgical procedures is completed. The list shall be updated periodically and at least every two years with additions, deletions, or both of surgical privileges.
8.5.7. The hospital shall maintain a log for daily documentation of each surgical procedure and shall include the following information:
8.5.7.a. The patient’s name;
8.5.7.b. The patient’s hospital identification number;
8.5.7.c. The date of the procedure;
8.5.7.d. Total time of the procedure;
8.5.7.e. Names of the surgeon or practitioner and any assistants;
8.5.7.f. Names of nursing personnel in attendance;
8.5.7.g. Type of anesthesia and name of person administering it; and
8.5.7.h. The procedure performed.
8.5.8. There shall be a complete patient history and physical work up in the chart of every patient prior to surgery, except in emergencies. If the history and physical has been done but is not yet recorded in the patient’s chart, there shall be a statement to that effect and an admission note in the chart by the practitioner who admitted the patient.
8.5.9. A completed and signed informed consent form for the intended surgical procedure shall be in the patient’s chart before surgery, except in emergencies.
8.5.10. The hospital shall ensure completion and authentication by the practitioner, of the operative report describing techniques, findings, and tissues removed or altered immediately following surgery. The content and format of the operative report shall be determined by hospital policy.
8.5.11. Operating rooms shall be provided with adequate standard equipment and supplies to ensure sage surgical care.
8.5.12. Adequate provisions shall be made for the storage of sterile surgical supplies and instruments.
8.5.13. Separate scrub facilities with non-manual controls readily accessible to each operating room shall be provided.
8.5.14. The hospital shall have written policies concerning the use of flammable anesthetics in the event flammable anesthetics are used.
8.5.15. Staff clothing change areas shall be provided within the surgical suite.
8.6. Post-Anesthesia Care Unit.
8.6.1. There shall be adequate provisions for immediate post-anesthesia care in a room or area separate from the surgical suite.
8.6.2. For each bed, sufficient area shall be allowed to permit space for bulky equipment and to afford access of personnel on all sides of the bed, including the head.
8.6.3. Beds shall be arranged so that all patients can be observed simultaneously.
8.6.4. Necessary equipment and adequate supplies shall be provided including space for proper storage.
8.6.5. Access to the post-anesthesia unit shall be limited to authorized personnel only.
8.6.6. The post-anesthesia unit shall be under the direction of a registered professional nurse licensed in West Virginia and experienced in the care and management of post-anesthesia patients.
8.6.7. At least one registered professional nurse and when necessary, one assisting person shall be in the post-anesthesia unit when a patient or patients are present.
8.6.8. The hospital shall record all pertinent information related to care provided while the patient is in the post-anesthesia unit in the patient’s medical record. This includes physician orders, patient respirations, pulse and blood pressure, and treatments and medication given. The patient’s condition on admission to the unit and transfer from the unit shall also be recorded in the patient’s record.
8.6.9. If patients are not transferred to the recovery room, provisions shall be made for direct observation by a registered professional nurse until they have regained consciousness and are transferred to the intensive care unit.
8.7. Anesthesia Department.
8.7.1. The hospital shall have an organized anesthesia department under the medical direction of a qualified physician member of the medical staff licensed by the West Virginia Board of Medicine or West Virginia Board of Osteopathic Medicine in West Virginia who will be responsible for all anesthesia administered in the hospital.
8.7.2. Anesthesia may be administered only by a licensed practitioner permitted by state law to administer anesthesia, a certified registered nurse anesthetist as permitted by state law, or other professionals as permitted by the medical staff and state law.
8.7.3. A practitioner qualified for the administration of anesthesia shall perform a pre-anesthesia evaluation no more than 48 hours prior to surgery.
8.7.4. The hospital shall ensure completion of an intra operative anesthesia record for all surgical patients.
8.7.5. A practitioner qualified for the administration of anesthesia shall perform a post anesthesia evaluation within 48 hours of surgery for all inpatients.
8.7.6. The hospital’s policy shall determine the content and format of the pre-anesthesia evaluation, intra operative anesthesia record, and the post anesthesia evaluation.
8.7.7. The hospital shall establish written policies for safeguards in the use of various types of anesthetics in accordance with the National Fire Protection Association.
8.7.8. The hospital shall store all equipment and medications used in administration of anesthesia in a secure, safe, and readily accessible location according to current professional standards. Qualified technicians shall service and maintain all equipment.
8.8. Pediatric Service.
8.8.1. Hospitals providing pediatric care shall have separate rooms designated for pediatric use.
8.8.2. Adult and pediatric patients shall not be placed in the same room at the same time. Designated pediatric rooms may be used for providing adult care when the rooms are not needed for pediatric patients.
8.8.3. The hospital shall have proper facilities and procedures for the isolation of children with infectious or communicable diseases.
8.8.4. The hospital shall have pediatric emergency supplies, medications, and equipment organized and readily available on any patient care unit that provides pediatric services.
8.9. Specialty Care and Critical Care Unit.
8.9.1. The hospital shall provide specialty care units, such as coronary care units and intensive care units, organized under the direction of a physician who is licensed in West Virginia and has experience in the specialty care provided.
8.9.2. The authority in determining criteria for admission, length of stay, and discharge and the resolution of operational problems shall be clearly delineated through policies developed cooperatively by the medical staff, nursing service, and administration and approved by the governing body.
8.9.3. A qualified physician shall be readily available to each unit at all times. The physician shall be available within 30 minutes for a response or an in-person meeting according to hospital policy. One physician may be available to more than one specialty unit at one time if the care provided is within his or her scope of practice.
8.9.4. The critical care unit organization and staffing shall be appropriate for the scope of services offered to ensure the health and safety of the patients.
8.9.5. The hospital shall provide nursing care under the supervision of a registered professional nurse licensed in West Virginia with experience in the specialty care provided.
8.9.6. Nursing personnel providing care in a specialty care unit shall have documented training and competence in the specific care provided.
8.9.7. An adequate number of staff shall be provided to ensure the health and safety of the patients.
8.9.8. A minimum of one registered professional nurse shall be on duty at all times and available to provide direct patient care.
8.9.9. Beds in a specialty care unit shall be arranged or provided with visual surveillance equipment to enable the nursing personnel to observe all patients closely and frequently from the nurse’s station.
8.9.10. Equipment in a specialty care unit shall include at a minimum:
8.9.10.a. Variable height, adjustable beds, and adequate storage space for equipment and personal effects;
8.9.10.b. Bedside emergency call systems;
8.9.10.c. Bedside suctioning equipment;
8.9.10.d. Bedside cardiac monitoring equipment with an alarm system that can be monitored from the bedside or a centralized location;
8.9.10.e. An extended defibrillator;
8.9.10.f. Adequate respiratory care supplies and equipment for resuscitation; and
8.9.10.g. Sufficient supplies and equipment appropriate for the scope of services provided.
8.10. Outpatient Department.
8.10.1. Outpatient services shall be provided under the supervision of a registered professional nurse licensed in West Virginia or other health care professional as appropriate for the service being offered.
8.10.2. Outpatient departments shall be easily accessible for all patients receiving treatment.
8.10.3. Outpatient departments shall be conveniently located to other hospital departments, such as the laboratory and the radiology department.
8.10.4. The outpatient department shall have accommodations and facilities to provide for the care, comfort and privacy of patients.
8.10.5. The outpatient department staffing patterns shall be based upon patient needs and services provided.
8.10.6. The outpatient department medical staff shall meet the same requirements and qualifications that apply to the attending medical staff of the hospital including credentialing and privilege determination by the hospital governing body.
8.10.7. The outpatient department shall maintain accurate and complete medical records for all outpatients, according to hospital policy.
8.11. Emergency Department.
8.11.1. All general acute care hospitals shall provide emergency services, unless it would result in an unnecessary duplication of services.
8.11.2. The emergency department shall be under the direction of a physician experienced in emergency medicine who is licensed in West Virginia and who is a member of the hospital medical staff.
8.11.3. Emergency department non-physician staff shall be under the supervision of a registered professional nurse licensed in West Virginia.
8.11.4. All emergency department staff shall be currently certified in, at least, basic life support measures.
8.11.5. At least one registered professional nurse, certified in advanced cardiac life support, and other patient care personnel as needed, experienced in emergency care, shall be available for all hours that emergency services are provided.
8.11.6. All physicians employed to provide services in the emergency department shall maintain documentation of training and board and certification or continuing medical education in current advanced cardiac life support best practices.
8.11.7. A physician or midlevel practitioner shall be on duty at the hospital to provide care whenever emergency services are provided.
8.11.8. If the hospital provides emergency services, the emergency department shall be located so as to permit easy access from automobiles and ambulances.
8.11.9. The emergency department shall keep records on all patients treated in the emergency department. The content and format of these records shall be determined by the hospital policy.
8.11.10. Emergency services shall be integrated with other departments of the hospital.
8.11.11. The hospital shall take all measures necessary to ensure compliance with the requirements of 42 U.S.C.A. §1395dd, even when the emergency services are not available.
W. Va. Code R. § 71-12-9 Extended Care Unit and Nursing Facility
9.1. General Requirement -- The extended care unit shall be located in a segregated, physically separated area of the hospital and shall include the usual complement of ancillary services required in the conventional care unit and meet the general rules and regulations for hospitals.
9.2. Special Requirements -- Adequate space shall be provided for dining and recreation areas, special equipment storage, training toilets, showers, and bath facilities. Handrails, drinking fountains, lavatories, thresholds, and telephone alcoves shall be designed to meet the requirements of patients using crutches, walkers, and wheelchairs.
9.3. Organization and Staffing.
9.3.1. The extended care unit shall be organized under the direction of a committee of the medical staff. Written policies shall be developed by professional personnel including at least one registered professional nurse.
9.3.2. The Nursing service shall be under the direction of a registered professional nurse.
9.3.3. A registered professional nurse shall be in charge of the extended care unit on each tour of duty with sufficient other personnel to assure adequate patient care.
9.3.4. For all units with more than 60 resident beds, the hospital governing body shall appoint a qualified administrator who holds a current valid license or emergency permit issued by the West Virginia Nursing Home Administrators Licensing Board.
9.3.5. The hospital shall appoint a physician licensed by the West Virginia Board of Medicine or the West Virginia Board of Osteopathic Medicine to serve as Medical Director for a unit with more than 60 resident beds. The hospital physician Medical Director may fulfill these responsibilities for any unit or facility with 60 or less resident beds.
9.3.6. The hospital shall assign a registered professional nurse as the Director of Nursing, different from the hospital Director of Nursing, who shall be responsible for care provided in an extended care unit with more than 60 resident beds and shall ensure a sufficient number of personnel are available to provide adequate patient care.
9.3.7. The unit may use the hospital pharmacy services to fulfill the pharmacy services requirements as defined in the Code of Federal Regulations, 42 CFR § 483.45. No written agreement is required if the pharmacist is an employee of the hospital.
9.3.8. The unit may use social workers employed by the hospital to provide services to unit patients: Provided, That at least one social worker shall be assigned responsibility only for social work services for any unit with more than 60 resident beds. The social worker shall have a license to practice social work in the state of West Virginia.
9.4. Financial Rights and Responsibilities.
9.4.1. An extended care resident or his or her representative lawfully authorized to manage fiscal matters on behalf of the resident have the right to manage his or her own personal financial affairs.
9.4.2. A hospital which manages or holds personal funds for extended care patients shall do so only upon written prior authorization of the patient or his or her representative lawfully authorized to manage fiscal matters on behalf of the patient, and shall hold the funds separately and in trust. Patient funds shall not be commingled with hospital operating or other funds.
9.4.3. The hospital shall administer the funds on behalf of the resident in the manner directed by the depositor.
9.4.4. The hospital shall render a true and complete account upon request to the depositor and at least quarterly to the resident on forms designated by the Director.
9.4.5. Upon termination of the deposit, the hospital shall account to the depositor for all funds received, expended, and held on hand on forms specified by the Director.
9.4.6. If the hospital manages or holds personal funds for extended care patients, it shall make provision for the protection, in the form of insurance or other means providing equivalent protection, of the funds from theft or other forms of loss in an amount equal to the hospital’s average daily balance of patient funds handled within the hospital’s preceding fiscal year. Hospitals which have not handled patient funds in the preceding year may use an estimated daily balance but shall update their estimate every three months based on actual experience until they have a full year on which to base an average.
9.4.7. If emergency services are not included in the extended care per diem rate, the hospital shall inform the patient in writing at the time of admission or at the time this exclusion is adopted by the hospital.
W. Va. Code R. § 71-12-10 Adjunct Diagnostic Services and Treatment Departments
10.1. General Requirements.
10.1.1. The hospital shall develop and maintain all ancillary diagnostic and treatment departments in accordance with section 5 of this rule.
10.1.2. The hospital shall locate ancillary patient departments conveniently to provide services to all patient populations.
10.1.3. A waiting area for patients shall provide for patient comfort and confidentiality.
10.1.4. The hospital shall provide toilets for ambulatory patients and the public.
10.1.5. The hospital shall ensure that all ancillary diagnostic services and treatment departments shall maintain current policy and procedure manuals approved by the medical staff. These manuals shall be reviewed and revised, as necessary, but at least, every three years.
10.1.6. All outpatient specialty services such as outpatient surgery and cardiac catheterization laboratory shall be equipped and maintained according to current professional standards.
10.2. Laboratory Department.
10.2.1. The hospital shall maintain, either directly or through contractual agreement with a certified laboratory, adequate laboratory services to meet the needs of the patients.
10.2.2. The hospital shall ensure that all laboratory services provided to patients are performed in a facility certified in accordance with 42 C.F.R. Part 493, and the 1988 Clinical Laboratory Improvement Amendments (CLIA).
10.2.3. Emergency laboratory services shall be available 24 hours a day.
10.2.4. Laboratory personnel shall be in sufficient numbers for the scope and complexity of services provided.
10.2.5. The hospital shall provide laboratory personnel with in-service training appropriate to the type and complexity of the services offered on a regularly scheduled basis as defined by hospital policy.
10.2.6. The hospital shall provide space for administrative services and clean-up and decontamination of equipment.
10.2.7. A written description of services provided shall be readily available to the medical staff.
10.3. Blood and Blood Products.
10.3.1. The hospital shall maintain a process for procurement, safekeeping, and transfusion of blood and provide that blood products are provided or readily available.
10.3.2. Blood shall be obtained, processed, stored, and administered under the supervision of a pathologist or designated physician.
10.3.3. The hospital shall make arrangements for procurement, transfer, and availability of blood types not ordinarily kept at the hospital.
10.3.4. Blood storage facilities in the hospital shall have an adequate temperature alarm system that is regularly inspected according to hospital policy.
10.3.5. The hospital shall evaluate blood use through the hospital quality improvement program. A pathologist, designated physician, or both shall be included in this evaluation.
10.3.6. The hospital shall ensure that all transfusion-related fatalities are investigated and reported as required by the provisions of 21 C.F.R. § 606.170.
10.3.7. The hospital shall ensure that the laboratory is properly registered, if appropriate, as required by the 42 C.F.R. § 417.124(h)(2).
10.3.8. The hospital shall have a process to take action if it has received or administered HIV blood or blood products in accordance with 42 C.F.R. § 482.27.
10.4. Radiology and Imaging Service.
10.4.1. The hospital shall maintain, or have available, diagnostic radiology services to meet the needs of the patients.
10.4.2. If therapeutic and diagnostic services are provided, they shall be administered according to professionally approved standards for safety and personnel qualifications.
10.4.3. Radiology services shall only be provided according to a practitioner’s orders consistent with state law, as authorized by the medical staff and the governing body.
10.4.4. Radiology services shall be under the medical direction of a qualified full-time, part-time, or consulting radiologist. A qualified radiologist is a Doctor of Medicine or Osteopathy who is qualified by education and experience in radiology and is licensed by the West Virginia Board of Medicine or West Virginia Board of Osteopathic Medicine. A radiologist’s responsibilities shall include:
10.4.4.a. Ensuring that radiology reports are signed by the practitioner who interpreted them;
10.4.4.b. Enforcing safety and infection control standards;
10.4.4.c. Assigning duties to radiology personnel based on their training, experience, and licensure when applicable;
10.4.4.d. Ensuring files, scans, and other image records are secure, retrievable, and maintained for a minimum of five years; and
10.4.4.e. Providing in-services and training to radiology personnel including management of radiation hazards and equipment safety, etc.
10.4.5. A radiologist shall interpret all imaging tests, except in cases where the medical staff has determined through its credentialing process that a test can be interpreted by another physician who has equal training and expertise in performing and interpreting certain designated tests.
10.4.6. Proper safety precautions shall be maintained against radiation hazards in compliance with the Department of Health Legislative Rule, Radiological Health Rules, 64CSR23, including:
10.4.6.a. Adequate shielding for patients, personnel, and facilities; and
10.4.6.b. Appropriate storage, use, and disposal of radioactive materials.
10.4.7. The hospital shall make periodic inspections of equipment according to hospital policy and any identified hazards shall be corrected promptly.
10.4.8. The hospital shall periodically check radiology service personnel, and other appropriate personnel, by the use of exposure meters or badge tests, according to hospital policy, to determine the amount of radiation exposure to which they may have been exposed.
10.4.9. Only radiology technologists or other individuals licensed in West Virginia or other individuals approved by hospital policy may operate radiology equipment and administer procedures pursuant to W. Va. Code §30-23-1, et seq.
10.4.10. The radiology service area shall have at least:
10.4.10.a. One radiographic room with adequate radiology equipment;
10.4.10.b. A darkroom unless a 100 percent filmless environment negates the need for a darkroom;
10.4.10.c. An office, viewing facilities, and film filing cabinets for both active and inactive records. This may be in one room in a small radiology department;
10.4.10.d. Dressing booths with an adjoining toilet and lavatory for patients;
10.4.10.e. Waiting space under the supervision of qualified personnel for patients using stretchers or wheelchairs;
10.4.10.f. A utility area with a sink and counter space; and
10.4.10.g. Supply and equipment storage space.
10.4.11. Therapeutic radiology and radiological isotopes, if provided, shall be provided according to current national professional standards.
10.5. Rehabilitation Service.
10.5.1. The hospital, if it provides rehabilitation, physical therapy, occupational therapy, audiology, sports medicine, or speech pathology services, shall organize those services and make staff available to ensure the health and safety of patients.
10.5.2. If any or all of the services referenced in subsection 10.5.1. are provided, they shall be provided by a sufficient number of staff who meets the qualifications specified by the medical staff, consistent with state law. The number of qualified staff is based upon the type of patients treated and the frequency, duration, and complexity of treatment required.
10.5.3. Each service, whether provided through a single discipline department or within a multi-discipline department, shall function with established lines of authority and responsibility that ensure accountability in patient care and administrative matters regarding the provision of the service.
10.5.4. Each service shall be accountable to an individual who directs the overall operation of the service.
10.5.5. The director of the services shall have the necessary knowledge, experience and capabilities to properly supervise and administer the services. An individual may serve as director of more than one service either as the director of a multi-service department or as the director of single service departments. The director may serve on either a full-time or part-time basis.
10.5.6. A qualified professional defined by medical staff policy, consistent with state law, shall:
10.5.6.a. Evaluate each patient;
10.5.6.b. Initiate the plan of treatment; and
10.5.6.c. Instruct and supervise supportive personnel.
10.5.7. The space and equipment required shall depend upon the services provided.
10.5.8. The hospital shall provide services in accordance with a written plan of treatment and in accordance with written orders of practitioners authorized by the medical staff.
10.5.9. The hospital shall ensure that the plan of treatment includes treatment goals and type, amount, frequency, and duration of services and shall be revised when appropriate.
10.6. Respiratory Care Services.
10.6.1. If the hospital provides respiratory care services, the scope of the diagnostic and therapeutic services offered shall be defined in writing and meet the needs of the patients.
10.6.2. Respiratory care services shall be under the medical direction of a physician licensed by the West Virginia Board of Medicine or West Virginia Board of Osteopathic Medicine with the knowledge and experience to supervise and administer the services. The director may serve on either a full-time or part-time basis.
10.6.3. The hospital shall employ adequate numbers of respiratory therapists, respiratory therapy technicians, and other personnel who meet the qualifications specified by the medical staff, consistent with state law.
10.6.4. The hospital shall deliver services in accordance with medical staff directives.
10.6.5. The hospital shall provide services only in accordance with the written orders of practitioners authorized by the medical staff.
10.6.6. The hospital shall designate in writing the personnel qualified to perform specific procedure and the amount of supervision required for these individuals.
10.6.7. The hospital shall designate in writing the personnel who are qualified to provide direct supervision.
10.6.8. If blood gases or other clinical laboratory tests are performed in the respiratory care unit, the unit shall meet the requirements for clinical laboratories with respect to management, adequacy of facilities, proficiency testing, and quality control, according to 42 C.F.R. § 482.27.
10.7. Additional Services.
If the hospital does not have morgue and autopsy facilities available at the hospital, the hospital shall maintain written agreements with an area mortuary, when available, or another hospital for these services to be provided.
10.8. Organ Procurement Responsibilities.
The hospital shall have and implement written protocols that ensure compliance with Condition of Participation: Organ, tissue, and eye procurement, 42 C.F.R. § 482.45.
W. Va. Code R. § 71-12-11 Medical Staff
11.1. Each hospital shall have an organized medical staff that is composed of one or more licensed physicians and may include other practitioners, in accordance with state law, that operates under by-laws approved by the governing authority. The medical staff is accountable to the governing body for the quality of medical care provided to the patients.
11.2. The governing authority of the hospital shall appoint the medical staff in accordance with its by-laws, rules, and regulations.
11.3. The medical staff periodically conduct appraisals of its members as defined by hospital policy.
11.4. The medical staff shall examine credentials of candidates for medical staff membership and make recommendations to the governing body on the appointment of candidates.
11.5. Medical staff recommendations to the governing authority for new members shall be specific to the type of appointment and extent of clinical privileges.
11.6. The governing authority shall delineate clinical privileges of each medical staff member in writing.
11.7. The governing authority shall approve the manner of organization of the medical staff.
11.8. If the medical staff has an executive committee, a majority of the members shall be physicians licensed in the state of West Virginia.
11.9. The medical staff shall adopt and enforce by-laws, rules, and regulations consistent with standard medical staff practices. These shall be reviewed and revised as appropriate, but no less than every two years.
11.10. The by-laws shall:
11.10.1. Be approved by the governing body;
11.10.2. Include a statement of the duties and privileges of each category of medical staff;
11.10.3. Describe the organization of the medical staff; and
11.10.4. Describe the qualifications to be met by a candidate in order for the medical staff to recommend that the candidate be appointed by the governing body.
11.11. All medical staff members shall sign a document that specifies they have read the bylaws, rules, and regulations. These rules, regulations, and policies shall specifically provide for:
11.11.1. Requiring departmentalized medical staffs to meet every other month if the executive committee meets monthly. The full medical staff shall meet annually. In the event the executive committee does not meet monthly, then the departmental meeting of the medical staff shall be monthly. Non-departmentalized medical staffs shall have monthly meetings of the executive committee and the full medical staff shall meet every other month. In the event there is no executive committee, the full medical staff shall meet monthly;
11.11.2. Staff review and analysis of clinical experiences in the various departments of the hospital such as medicine, surgery, obstetrics, and other specialties. The clinical records of patients shall be the basis of the review and analysis;
11.11.3. The performance of committee functions in at least the following areas: credentials, medical records, case and utilization review, quality assurance/improvement, infection control mortality, pharmacy and therapeutic practices, and any other committees the hospital considers necessary; and
11.11.4. A chief of staff with direct responsibility for the organization and administration of the medical staff in accordance with the terms of the medical by-laws, rules, and regulations.
The chief of staff shall be responsible for the functioning of the clinical organization of the hospital and maintaining careful supervision over the clinical work in all departments of the hospital.
W. Va. Code R. § 71-12-12 Nursing Service
12.1. The hospital shall organize the nursing services to provide comprehensive, effective nursing care to each patient under the direction of a registered professional nurse currently licensed in West Virginia and with the education and experience to demonstrate his or her ability to properly execute his or her functions and responsibilities.
12.2. The Director of Nursing shall ensure that there are policy and procedure manuals developed for each different type of patient care unit and that the specific manuals are available on each specific unit.
12.3. The hospital shall maintain a written nursing service plan of administrative authority with delineation of responsibilities and duties of each category of nursing personnel, which shall include at least:
12.3.1. A statement of the policy, mission, and objectives of the nursing service; and
12.3.2. Current job descriptions, qualifications, and specifications for each category of nursing personnel of which there is documented annual review.
12.4. The following records shall be available at the hospital:
12.4.1. Documentation that lists and verifies that all licensed nursing personnel, including private duty and per diem nurses, are currently licensed to practice nursing in West Virginia and that those licenses are in good standing; and
12.4.2. A confidential personnel record for each employee containing information to support the employee’s assignment.
12.5. The record shall contain at least the following information:
12.5.1. A dated application for employment verified by references which includes the applicant’s training and experience;
12.5.2. Current licensure, registration, or certification status;
12.5.3. Evaluations of work performance signed by the employee and his or her supervisor;
12.5.4. Subsequent change of status forms including change of address, salary adjustments, merit increases, and promotions; and
12.5.5. A record of each employee’s participation in continuing education.
12.6. The hospital shall maintain a job description for each job category, including the following:
12.6.1. The job title and qualifications, including educational and skill requirements;
12.6.2. A general description of the employee’s duties and responsibilities including limitations, if applicable; and
12.6.3. Supervision to be given and received.
12.7. The hospital shall make available to all nursing employees and provide explanation of the written personnel policies, procedures, and organizational charts.
12.8. The following records shall be available in the nursing department:
12.8.1. Current nursing care policy and procedure manuals;
12.8.2. Minutes and records of attendance at all meetings;
12.8.3. A list of nursing service committees and other committees on which nursing is represented; and
12.8.4. A master staffing plan for the current year.
12.9. The hospital shall provide an adequate number of registered professional nurses and other nursing personnel to meet the following minimum staff requirements:
12.9.1. To provide administrative assistance and supervision during the absence of the Director of Nursing;
12.9.2. To provide supervisory personnel qualified by experience, education, and ability for each specialty area of the nursing department;
12.9.3. To provide a registered professional nurse on duty and immediately available for bedside care of any patient when needed on each shift, 24 hours per day, seven days a week; and
12.9.4. To provide the availability of licensed practical nurses, health care personnel, both to supplement registered professional nurses according to patient acuity.
12.10. If it is hospital policy to use nursing assistants interchangeably between acute patient care units and an extended care unit, the hospital shall maintain documented evidence of nurse assistant training certification for personnel used in this manner.
12.11. The hospital shall provide additional personnel, as needed, to provide clerical procedures.
12.12. The registered professional nurse shall plan, supervise, and evaluate the nursing care for each patient, according to the needs of the patient.
12.13. The hospital shall establish and maintain a current individualized patient care plan for each patient.
12.14. The hospital shall maintain documented nursing notes for each patient.
12.15. Nursing representatives shall be members of committees concerned with interdepartmental policies affecting nursing services and nursing care.
12.16. Planned meetings shall be held by the nursing department according to hospital policy to discuss patient care, nursing service problems, and administrative policies and to analyze the quality of nursing care rendered to patients.
12.17. The hospital shall provide documented, continuing education activities for all nursing personnel. These activities shall include, but not be limited to, on the job training and development programs. Records of these program activities shall be maintained, including methods used and an evaluation of their effectiveness.
W. Va. Code R. § 71-12-13 Patient Care Services
13.1. Patient Care.
13.1.1. Every patient shall be under the care of a practitioner who is:
13.1.1.a. A Doctor of Medicine or Osteopathy who possesses a valid license issued by the West Virginia Board of Medicine or the West Virginia Board of Osteopathic Medicine, respectively, or who is otherwise lawfully practicing in the state: Provided, that this paragraph is not to be construed to limit the authority of a Doctor of Medicine or Osteopathy to delegate tasks to other qualified health care personnel to the extent recognized under state law or rules;
13.1.1.b. A Doctor of Podiatric Medicine who possesses a valid license issued by the West Virginia Board of Medicine or who is otherwise lawfully practicing in the state, but only with respect to functions that he or she is legally authorized under state law or rules;
13.1.1.c. A Doctor of Dental Surgery or Dental Medicine who possesses a valid license issued by the West Virginia Board of Dental Examiners or who is otherwise lawfully practicing in the state, but only with respect to functions that he or she is legally authorized by the state to perform;
13.1.1.d. A Doctor of Optometry who possesses a valid license issued by the West Virginia Board of Optometry or who is otherwise lawfully practicing in the state, but only with respect to services related to the condition of aphakia;
13.1.1.e. A chiropractor who possesses a valid license issued by the West Virginia Board of Chiropractic Examiners or who is otherwise lawfully practicing in the state, but only with respect to treatment by means of manipulation of the spine to correct a subluxation demonstrated to exist by x-ray or other medically accepted imaging media;
13.1.1.f. A psychologist who possesses a valid license issued by the West Virginia Board of Examiners of Psychologists or who is otherwise lawfully practicing in the state, but only with respect to functions that he or she is legally authorized by the state to perform; or
13.1.1.g. A midlevel practitioner who possesses a valid license issued by the appropriate licensing board who is lawfully practicing in the state.
13.1.2. A Doctor of Medicine or Osteopathy shall be on duty or on call at all times.
13.1.3. A Doctor of Medicine or Osteopathy shall be responsible for the care of each patient with respect to any medical or psychiatric problem that is present on admission or develops during hospitalization.
13.2. Patient Care Delivery.
13.2.1. Delivery of patient care and treatment interventions shall be based on the needs identified in the plan of care.
13.2.2. The hospital shall ensure completion of a nursing assessment within 24 hours of admission as an inpatient. This assessment shall include information necessary to develop an effective plan of care.
13.2.3. Each patient’s clinical response to the plan of care shall be evaluated by the physician and registered nurse with other responsible practitioners, as appropriate, to determine that the patient care goals are being met.
13.2.4. The hospital shall ensure completion of a reassessment of each patient and implementation of a revised plan of care, as often as necessary, to meet the patient’s needs.
13.2.5. The hospital shall ensure that documentation of each patient’s plan of care shall be written legibly or entered electronically to convey in an understandable manner the diagnostic, therapeutic or rehabilitative service, sentinel events, reassessments and revisions, physician’s orders whether written or verbal, implementation of the orders, and patient compliance and responses.
13.3. Patient Admission, Assessment, and Plans of Care.
13.3.1. Patients shall be admitted to the hospital only upon orders of a practitioner licensed in West Virginia with admitting privileges at the hospital.
13.3.2. The hospital shall ensure completion of a comprehensive assessment, including any information necessary to develop an effective, interdisciplinary plan of care, in the time frame identified by hospital policy and placed in the medical record.
13.3.3. The comprehensive assessment shall include, at minimum, the patient’s health history including any pertinent psycho-social factors and the results of the physical examination performed upon admission.
13.3.4. Patient assessment activities shall encompass the full scope of the patient’s care needs, which may include services provided by other licensed or registered health care professionals as authorized by medical staff policies.
13.3.5. Each patient shall have an effective plan of care based upon the specific needs identified by all assessment activities.
13.3.6. Identified, accepted clinical outcomes should be attained as a result of implementation of a patient specific plan of care.
13.3.7. The hospital shall ensure that each patient be reassessed as determined by patient diagnosis, expected clinical outcomes, changes in the patient’s condition and evaluation of the patient’s response to treatment and therapies.
13.3.8. Each licensed or registered health care professional involved in a patient’s care may perform reassessments of the patient within his or her area of training and professional expertise as determined by hospital policy and the scope of practice of the practitioner.
W. Va. Code R. § 71-12-14 Discharge Planning
14.1. The hospital shall have in effect a discharge planning process for post-hospital services, including hospice, which includes early assessment of the needs of each patient, particularly those with potential risk for adverse consequences upon discharge. The assessment shall be based upon the patient’s functional abilities and probable environment to which the patient shall return. The hospital’s policies and procedures shall be specified in writing.
14.2. A discharge needs assessment, evaluating the factors that affect the patient’s need for post-hospital care, shall be performed or supervised by a registered nurse, social worker or other appropriately qualified person, as identified by hospital policy, and be completed in enough time for appropriate arrangements to be made prior to discharge. The assessment shall address the biopsychosocial needs of the patient, the level of understanding of those needs and an identification of post hospital care resources.
14.3. The hospital shall provide counseling as needed, to the patient and family members or interested persons, to prepare them for post-hospital care, including hospice services.
14.4. The hospital shall arrange for the initial implementation of the patient’s discharge plan, including obtaining post-hospital services as necessary.
14.5. The hospital shall ensure that the discharge plan be reassessed, as needed, and entered into the patient’s record.
14.6. The hospital shall transfer or refer patients, along with necessary medical information, to appropriate facilities, agencies, or outpatient services, as needed, for follow-up or ancillary care.
14.7. The discharge planning process shall be an integral part of the quality assessment and performance improvement program, as detailed in section 15 of this rule.
W. Va. Code R. § 71-12-15 Quality Assessments and Performance Improvement
15.1. The governing body, medical staff, and hospital administration are responsible for and shall review at least annually the development, implementation, and maintenance and effective evaluation of quality assessments for performance improvement. This process systematically collects, measures, analyzes, and tracks objective indicators of the care and hospital operations. This evaluation plan should reflect the complexity of the hospital’s organization and services.
15.2. The focus of performance evaluation shall be in areas over which the hospital exercises authority and responsibility, including services furnished by contract.
15.3. Priorities for performance improvement projects shall be based upon the prevalence and severity of problems which most affect clinical outcomes identified through the data collected.
15.4. Performance measures may be designed and implemented under contract by the hospital staff through research or consensus groups within the facility or through the use of credible consultants.
15.5. Performance measures shall be commensurate with the size and resources available to each hospital.
15.6. Performance measures should use not only hospital-specific data, but peer review organizations and any other available relevant data for comparative purposes as an integral part of the assessment plan.
15.7. The hospital shall make available to the Director the results of peer review and quality assessments and performance improvement information, upon the Director’s request.
15.8. Quality improvement activities should be demonstrably linked to findings of performance evaluations and cover the full range of the hospital’s services to patients.
15.9. The hospital shall conduct an assessment of the impact of quality improvement activities and corrections or reevaluation of the performance indicators, no longer than six months after any change is instituted, unless another time period for assessment can be justified based upon analytic factors, such as adequate sample size, or circumstances outside the control of the hospital.
15.10. Areas of measurement.
At a minimum the measure shall include, but not be limited to:
15.10.1. Nosocomial infections and other infection control issues;
15.10.2. Staff, administrative, and practitioner performance;
15.10.3. Complaints, grievances, or risk management findings;
15.10.4. Evaluation of diagnostic and therapeutic services provided;
15.10.5. Medication errors and other incidents or occurrences;
15.10.6. Drug therapy and adverse drugs reactions; and
15.10.7. Evaluation of all services provided to patients by staff accountable to the hospital through employment or contract.
W. Va. Code R. § 71-12-16 Critical Access Hospital
16.1. Critical Access Hospital Designation.
16.1.1. A critical access hospital is designated as such by the Office of Community and Rural Health and approved by the Centers for Medicare and Medicaid Services.
16.1.2. Upon designation as a Critical Access Hospital, the hospital shall remain subject to the provisions of Critical Access Hospital rules and public health law and rules applicable to hospitals, including those parts pertaining to certificates of need and other operating certificates. This shall also apply to the proposed revocation, suspension, limitation, or decertification of a Critical Access Hospital designation.
16.2. Scope of Services.
16.2.1. Critical Access Hospital shall provide initial diagnostic services, a limited range of therapeutic services, resuscitation, and stabilization services, and shall have the ability to arrange transport to other more appropriate facilities for patients in need of services not offered at the Critical Access Hospitals.
16.2.2. A Critical Access Hospital shall provide a minimum set of core services to meet patient needs including:
16.2.2.a. Emergency services provided by a licensed West Virginia physician or an experienced and trained midlevel practitioner who can handle urgent and emergency care services, within his or her scope of practice, and in compliance with 42 C.F.R. § 485.618. In the event services are provided by a clinician other than a Doctor of Medicine or a Doctor of Osteopathy, this clinician must be supervised by a Doctor of Medicine or Osteopathy who is available by telephone or radio contact 24 hours a day and be available on site within 30 minutes from initial contact;
16.2.2.b. Inpatient acute care and ambulatory services;
16.2.2.c. Laboratory services;
16.2.2.d. Imaging services; and
16.2.2.e. Pharmacy services.
16.2.3. When a Critical Access Hospital does not require a physician to be on site, it must ensure that patients in need of emergency care arriving at the facility are provided with emergency medical treatment within the capabilities of the facility.
16.3. Licensure.
A Critical Access Hospital shall meet all hospital licensure standards for the state of West Virginia, cited in section 1 through 14 of this rule in addition to the following requirements:
16.3.1. A licensed professional registered nurse, nurse practitioner, physician’s assistant, or physician shall provide 24-hour on-site care when the Critical Access Hospital renders inpatient services;
16.3.2. Authorized admissions to a Critical Access Hospital may include only patients that, by the judgment of the admitting practitioner, are determined to have medical needs that can be managed and resolved within the 96-hour period estimated for inpatient services pursuant to 42 C.F.R. § 485.620. The Critical Access Hospital shall transfer patients presenting with conditions that are beyond the clinical capabilities of the Critical Access Hospital to a hospital that has available appropriate services.
16.4. Quality Improvement.
16.4.1. The governing authority shall require the establishment and maintenance of a written quality assurance program which integrates the review activities of all Critical Access Hospital services to enhance the quality of patient care. In meeting the hospital quality assessment under section 15 of this rule, this program shall be designed to focus on the continuum of care that concentrates on improving the outcomes of care to patients from all services provided at the facility.
16.4.2. At a minimum the quality improvement program shall include, but not be limited to, the following:
16.4.2.a. Access and availability of care;
16.4.2.b. Variations from generally accepted standards of care;
16.4.2.c. Unanticipated transfers to a more intensive facility;
16.4.2.d. Cases that exceed the 96-hour length of stay for the Critical Access Hospital;
16.4.2.e. Nosocomial infections and other infection control issues;
16.4.2.f. Complaints, grievances, or risk management findings;
16.4.2.g. Evaluation of diagnostic and therapeutic services provided;
16.4.2.h. Medication errors and other incidents or occurrences; and
16.4.2.i. Adverse drug reactions.
16.5. Medical Staff.
16.5.1. The medical staff shall develop a system in which network medical and professional staff participates and collaborates to provide consultation, assistance with medical emergencies, and patient referrals.
16.5.2. The Critical Access Hospital shall ensure that physicians are present for sufficient period of time, as defined by the hospital’s governing body, to provide the necessary and appropriate medical direction, medical care services, consultation, and supervision of hospital health care staff in accordance with patient needs.
16.5.3. When the Critical Access Hospital does not require a physician to be onsite, the medical staff shall ensure that at least one Doctor of Medicine or Osteopathy is available by radio or telephone on a 24 hour a day basis, and is available on-site within 30 minutes of patient need 24 hours a day.
W. Va. Code R. § 71-12-17 Specialized Hospitals
17.1. Long-Term Acute Care Hospital.
17.1.1. To be licensed as a Long-Term Acute Care Hospital, a hospital shall:
17.1.1.a. Be devoted exclusively to the care of patients requiring hospitalization because of prolonged illness or who are acutely ill and not in need of general acute hospital care but who do require continuing medical care, skilled nursing care, and related medical services; and
17.1.1.b. Have a professional staff qualified in the diagnosis and treatment of chronic diseases.
17.1.2. The hospital shall surrender the license of any acute care beds used in the development of the Long-Term Acute Care Hospital.
17.1.3. If the Long-Term Acute Care Hospital ceases to exist, terminates its services, or fails to offer its services for a period of 12 months, any beds whose license was surrendered by the hospital to establish the Long-Term Acute Care Hospital shall revert back to the hospital’s licensed bed capacity.
17.1.4. Meet all Centers for Medicare and Medicaid Services’ requirements relating to a Long- Term Acute Care Hospital.
17.2. Psychiatric Hospital.
To be licensed as a psychiatric hospital, a hospital shall:
17.2.1. Be devoted exclusively to the care of psychiatric patients;
17.2.2. Have professional personnel especially qualified in the diagnosis and treatment of psychiatric disorders;
17.2.3. Have adequate facilities for the protection of the patients and staff;
17.2.4. Meet the requirements for a hospital; and
17.2.5. Be in compliance with requirements at 42 C.F.R. § 482.61 and § 482.62.
17.3. Rehabilitation Hospital.
To be licensed as a rehabilitation hospital a hospital shall:
17.3.1. Be devoted exclusively to the care of patients requiring rehabilitation services and therapies;
17.3.2. Have professional personnel especially qualified in the diagnosis and treatment of conditions requiring these services and therapies; and
17.3.3. Meet the requirements for a hospital pursuant to this rule.
17.4. Rural Emergency Hospital.
17.4.1. To be licensed as a rural emergency hospital, a hospital shall:
17.4.1.a. Be enrolled in Medicaid and Medicare;
17.4.1.b. Have a transfer agreement in effect with a Level I or Level II trauma center;
17.4.1.c. Have a staffed emergency department 24 hours a day, seven days a week, with staffing requirements like those in section 16 of this rule for Critical Access Hospitals;
17.4.1.d. A physician as that term is defined in 42 U.S.C.A. § 1395x(r) or nurse practitioner, clinical nurse specialist, or physician assistant as those terms are defined in 42 U.S.C.A. § 1395x(aa)(5) available to provide rural emergency hospital services in the facility 24 hours a day;
17.4.1.e. Meet the requirements of a hospital pursuant to W. Va. Code §16-5B-1, et seq. and this rule;
17.4.1.f. Not exceed an annual per patient average of 24 hour of services; and
17.4.1.g. Not provide any acute care inpatient hospital services, other post-hospital extended care services provided in a distinct part unit licensed as a skilled nursing facility.
17.4.2. Rural emergency hospitals may furnish outpatient and other medical services in conformity with this rule and the requirements of W. Va. Code §16B-3-1, et seq.
17.4.3. Rural emergency hospitals must meet all Centers for Medicare and Medicaid Services’ requirements relating to Critical Access Hospitals related to emergency services and hospital emergency departments.
W. Va. Code R. § 71-12-18 Administrative Due Process
18.1. Administrative due process and remedies for actions taken pursuant to this rule or W. Va. Code §16B-3-1, et seq. are as provided by this rule, by applicable statutes, and in the West Virginia Department of Health Procedural Rule, Rules for Hearings Under the Administrative Procedures Act, 69CSR1.
Series 13 Birthing Center Licensure
W. Va. Code R. § 71-13-1 General
1.1. Scope. -- These legislative rules establish rules and procedures for the licensing of birthing centers for the purpose of providing an alternate method of giving birth. The rules are designed to ensure adequate care and accommodations for clients of birthing centers while not hampering the development of such centers.
1.2. Authority. -- W. Va. Code §16B-20-3.
1.3. Filing Date. -- May 28, 2025.
1.4. Effective Date. -- May 28, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-13-2 Application and Enforcement
2.1. Application - These legislative rules shall apply to any person, partnership, association or corporation and any local governmental unit or any division, department, board or agency thereof establishing, conducting, managing or operating a birthing center.
2.2. Exceptions
2.2.1. A birthing service or center operated as a service within a hospital shall be licensed under hospital licensure regulations as promulgated under W. Va. Code §§16B-3-1, et seq.
2.3. Enforcement – This rule is enforced by the Office of Inspector General or his or her designee. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule, except where otherwise noted.
W. Va. Code R. § 71-13-3 Definitions
3.1. Applicant - The person who submits an application for an original or a renewal license to operate a birthing center or birthing service.
3.2. Birthing Center - A type of facility, which is a building, house or the equivalent organized to provide facilities and staff to support a birthing service for pregnant clients. A birthing center should be an adaptation of a home environment to a short-stay ambulatory health care facility where low risk births are planned to occur away from the mother's usual residence following normal uncomplicated pregnancy.
3.3. Birthing Service - The prenatal, intrapartum, and post-partum care provided for individuals with uncomplicated pregnancy, labor and vaginal birth and newborn care during the recovery period.
3.4. Client - A woman, fetus, or newborn receiving care and services provided by a birthing center during pregnancy, childbirth and recovery.
3.5. Clinical Staff - Physicians, nurse-midwives, midwives and nurses appointed by the governing body of the birthing center to practice within the birthing center.
3.6. Director – The director of the Office of Health Facility Licensure and Certification or his or her designee.
3.7. Gender - The pronoun "he" shall denote both the masculine and feminine gender. The use of any word denoting the masculine gender shall be taken to apply to both females and males.
3.8. Governing Body - The individual, agency, group or corporation, appointed, elected or otherwise designated, in which the ultimate responsibility and authority for the conduct of the birthing center is vested.
3.9. Inspector General – The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1, or his or her designee.
3.10. License - The document issued by the director which constitutes the authority to receive patients and perform services included within the scope of these regulations.
3.11. Licensed or Registered or Certified - When applied to a person means that the person to whom the term is applied is duly licensed or registered or certified to practice a profession by the proper authority within the State of West Virginia and when applied to a facility means that the facility is duly licensed by the Office of Health Facility Licensure and Certification.
3.12. Low Risk Maternal Client - An individual who is in general good health who participates in ongoing prenatal care and a maternity health education program, and who has no major medical, psychological or sociological problems, and who has had no significant obstetrical complications which are likely to recur, and who is anticipated to have a medically, psychologically and sociologically uncomplicated course of pregnancy and labor, including a vaginal birth, and who is expected to accomplish birth without the use of general anesthesia.
3.13. Nurse-Midwife - An individual licensed in West Virginia as a nurse-midwife.
3.14. Office of Health Facility Licensure and Certification – The West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
3.15. Recovery - That period of time starting at the birth and ending with the discharge of a client from the birthing center or the period of time between the birth and the time a client leaves the premises of the birthing center.
3.16. Support Person - The individual selected or chosen by a maternal client to provide support and assistance during the process of labor and childbirth.
W. Va. Code R. § 71-13-4 State Administrative Procedures
4.1. General Licensure Provisions
4.1.1. No person, partnership, association, corporation, or any local governmental unit or any division, department, board or agency thereof may operate a birthing center in the State of West Virginia without first obtaining a license under these rules.
4.1.2. Neither an original nor a renewal license shall be issued under these rules for a project reviewable under W. Va. Code §§16B-20-1, et seq., unless the state health planning and development agency has issued a finding, after a final conformance review, that the completed project conforms to the terms of the certificate of need decision issued for the project. Evidence of compliance shall be supplied with licensure applications.
4.1.3. A license shall be valid only for the premises and persons named and described in the application, shall not be transferable or assignable and shall be surrendered to the director upon a written demand stating the cause for the demand.
4.1.4. If the ownership of a birthing center with a valid, unexpired license changes, the new owner shall apply for a new license. The application of the new owner for a license shall have the effect of a valid license for three months from the date the application is received by the director.
4.1.5. A license shall state: (a) the specific name of the birthing center to which it applies; (b) the date of issuance; and (c) the expiration date. A birthing center name change shall be shown in the next license issued.
4.1.6. The license shall be posted in a conspicuous and public place of the birthing center.
4.1.7. Neither the name of the birthing center nor any advertising of the center's services shall suggest or claim any services other than those given on the application and for which the center is licensed.
4.2. Initial License.
4.2.1. An applicant shall submit a completed application to the director, on a form prescribed by the director, not less than 30 days and not more than 60 days prior to the date proposed for commencement of operation. Information required may include affirmative evidence of the ability to comply with these rules and regulations. A non-refundable fee of $10 shall be submitted with the application for an initial license.
4.2.2. An initial license shall be issued only after the director inspects the birthing center and only if he or she finds that:
4.2.2.a. The birthing center substantially complies with these rules and regulations; and
4.2.2.b. the applicant is a person responsible and suitable to operate, direct or participate in the operation of a birthing center by virtue of financial capacity and appropriate business or professional experience.
4.2.3. An initial license issued after the effective date of these rules and regulations shall be valid for a period of one year from the date of issuance.
4.3. Renewal License.
4.3.1. An applicant for a renewal license shall submit a completed application to the director on a form prescribed by the director not less than 30 days and not more than 90 days prior to the scheduled expiration date of the current license. A nonrefundable fee of $10 shall be submitted with the license renewal application.
4.3.2. The director shall issue a renewal license when he or she finds the facility in compliance with these regulations and the licensee submits a completed application and the correct renewal fee.
4.3.3. A renewal license shall be valid for a period of one year from the date of issuance.
4.4. Provisional License.
4.4.1. If the director finds that an applicant for a renewal license is not in substantial compliance with the requirements of these regulations the director may, in his or her discretion, issue a provisional license.
4.4.2. A provisional license may be issued only when the director finds that: (a) the care given in the birthing center is adequate to meet client needs; and (b) the birthing center has demonstrated improvement in and potential for substantial compliance within the term of the license for which renewal is requested.
4.4.3. A provisional license shall not be issued for a period greater than 12 months; shall not be renewed; and shall not be issued to a facility with uncorrected violations of these regulations which would pose an imminent danger to the health and safety of any client.
4.5. Inspections.
4.5.1. The director shall conduct at least one unannounced inspection annually of a licensed birthing center to determine compliance with the provisions of these regulations.
4.5.2. The director shall have the right to enter the premises of a facility which he or she has reason to believe is being operated or maintained as a birthing center without a license.
4.5.3. If the owner or person in charge of a licensed birthing center or of an unlicensed facility which the director has reason to believe is being operated as a birthing center refuses entry pursuant to these regulations, the director shall take action to secure a lawful warrant authorizing inspection.
4.5.4. If the director finds on the basis of the inspection that a facility is operating as a birthing center without a license, the facility shall apply within ten days for a license in accordance with the provisions of these regulations.
4.5.5. Failure to apply for a license shall be subject to the penalties established by W. Va. Code §16B-20-5.
4.5.6. A report of any inspection made pursuant to these regulations shall be made in writing and shall be maintained on file by the director.
4.5.7. Inspection reports shall specifically list each deficiency in the birthing center's compliance with statutes and rules and regulations.
4.5.8. The director shall send a copy of a report of an inspection to the birthing center.
4.6. Plans of Correction.
4.6.1. A birthing center found on the basis of an inspection to have deficiencies in compliance with these rules and regulations shall develop a plan of correction and submit it to the director within 30 days of receipt of the inspection report.
4.6.2. A plan of correction shall specify a reasonable time within which the birthing center shall correct each violation cited in the report, which time shall be the shortest possible time within which the birthing center reasonably can be expected to correct the violation.
4.6.3. The time stated shall be subject to approval or modification by the director. In determining whether to approve the time submitted by the facility, the director shall consider the following factors: (a) the seriousness of the violation; (b) the availability of required equipment or personnel; (c) the estimated time required for delivery and installation of required equipment; and (d) any other relevant circumstances.
4.6.4. A plan of correction submitted by a birthing center shall be approved, modified or rejected by the director. The director shall notify the birthing center within ten days as to whether a plan of correction has been approved, modified or rejected. If the director rejects or modifies the plan, the reasons for the action shall be stated. When the director rejects a plan of correction, a reasonable time for submission of a revised plan may be allowed.
4.6.5. Upon the failure by a birthing center with deficiencies to submit a plan of correction which is approved by the director or to correct any deficiency within the time specified in an approved plan of correction, the director may initiate legal action available to him or her in accordance with the West Virginia Code of 1931, as amended, and these rules and regulations.
4.7. Complaint Investigation.
4.7.1. Any person may register a complaint with the director alleging violation of applicable laws or rules and regulations by the birthing center. A complainant shall state the substance of the complaint and shall identify the birthing center involved.
4.7.2. The director may conduct either an announced or an unannounced inspection of the birthing center to determine the validity of the complaint. The Director shall provide the birthing center with notice of the substance of the complaint only at the time of the inspection. The director shall conduct such other investigations as may be necessary to determine the validity of the complaint.
4.7.3. The director shall notify the complainant and the birthing center in writing of the results of the investigation no later than 20 working days after completing an investigation of a complaint.
4.7.4. Upon written request, the director will send the complainant a description of the corrective action the birthing center will be required to take and of any disciplinary action to be taken.
4.7.5. The name of a complainant or of any person named in a complaint shall be safeguarded by the director and shall not be disclosed without the individual's prior written authorization. Before any complaint is disclosed to a birthing center or to the public pursuant to these regulations, any information in the complaint which could reasonably identify the complainant, or a client, shall be deleted. If a complaint becomes the subject of a judicial proceeding, nothing in these rules and regulations shall be construed to restrict disclosure of information which would otherwise be disclosed in a judicial proceeding.
4.8. Availability of Reports and Records.
4.8.1. The director shall make available for public inspection and upon written request may provide copies of the following documents: (a) inspection reports; (b) reports of investigations conducted in response to complaints; and (c) any other reports filed with or issued by the director pertaining to the compliance of a facility with applicable laws, rules and regulations. A fee may be charged to cover the cost of research and copying. Applications for initial and renewal license shall be held confidential.
4.8.2. The director shall treat a report of inspection of a birthing center as public information from the time a written plan of correction is submitted.
4.8.3. If the birthing center does not submit a written plan of correction within the time specified by the director pursuant to Section 4.7 of these regulations, reports pertaining to the birthing center shall be made public at the expiration of the specified time.
4.8.4. Other records and reports shall be treated as public information from the time they are issued by the director.
4.8.5. Nothing contained in this section shall be construed to require or permit the public disclosure of confidential medical, social, personal or financial records of any client.
4.8.6. Before releasing a report or record deemed public information the director shall delete any confidential information which could reasonably permit identification of clients or of complainants or of any other information required to be held confidential under these rules and regulations.
W. Va. Code R. § 71-13-5 Physical Facilities
5.1. Life Safety. The birthing center shall be in compliance with the National Fire Protection Association, National Fire Codes and the Fire Prevention Code known as the Fire Safety Code, as adopted by the West Virginia fire commission and the additional promulgated fire safety regulations as filed by the state fire commission.
5.2. General Construction.
5.2.1. There shall be drainage, sewerage disposal, hot and cold running water supply, and electricity which shall meet state and local laws and rules and regulations. Evidence of compliance shall be available in the birthing center and shall, upon written request, be submitted to the director.
5.2.2. Local building codes and zoning restrictions shall be observed. Evidence of compliance shall be available in the birthing center and shall, upon written request, be submitted to the director.
5.3. Food Service. Any catered food service or on-premises food service provided by the facility shall be in compliance with West Virginia Food Service Sanitation Regulations promulgated by the West Virginia board of health.
5.4. General Maintenance.
5.4.1. The birthing center shall establish and implement a written program of preventive maintenance to ensure that all essential mechanical, electrical and client care equipment is in safe operating condition.
5.4.2. Stairwells and corridors shall be kept free from obstruction at all times.
5.4.3. The interior and the grounds of the birthing center shall be kept in sanitary, safe and presentable condition and shall be free from accumulated rubbish and other health hazards of a similar nature.
5.4.4. Effective measures shall be taken to minimize the presence of insects, rodents and vermin. Pesticides shall not be applied in any way that constitutes a hazard to clients, staff or any other persons.
5.4.5. Maintenance and housekeeping services may be provided by another organization.
5.4.6. All floor surfaces, wall surfaces, water closets, lavatories, tubs and showers shall be kept clean and in good repair.
5.4.7. The birthing center shall adopt and implement written policies and procedures to provide for the handling of equipment and medical supplies in a manner which ensures the utilization of clean and sterile supplies and equipment in client care. Clean and sterile supplies and equipment shall be segregated from those that are soiled.
5.4.8. The birthing center shall adopt and implement written policies and procedures to ensure the provision of clean linens and the segregation of clean linens from those which are soiled.
5.4.9. The birthing center shall adopt and implement written policies and procedures to provide for the collection and disposition of refuse and liquid waste in a manner to prevent the creation of unsafe or unsanitary conditions.
W. Va. Code R. § 71-13-6 Governance and Management
6.1. The birthing center shall identify to the director the governing body or person so functioning which has the overall authority and responsibility for the operation and management of the birthing center.
6.2. The birthing center shall adopt and implement written policies and procedures which shall include at a minimum:
6.2.1. The health care and safety of clients within or on the premises of the birthing center;
6.2.2. The operation of the facility;
6.2.3. Services provided by the facility;
6.2.4. The health and safety of facility staff within or on the premises of the birthing center;
6.2.5. Personnel policies and procedures, including job descriptions and educational and training requirements;
6.2.6. Orientation, training and education programs for staff; and
6.2.7. Other policies and procedures required by these rules and regulations.
6.3. Staff shall have access to the policies and procedures.
6.4. The birthing center shall establish and maintain a current written plan for the facility which shall be reviewed at least once every two years. Such plan shall include:
6.4.1. A description of services to be provided;
6.4.2. A description of clients to be served;
6.4.3. An organizational plan which includes all positions and delineates responsibilities, authority, and relationships of positions within the birthing center; and
6.4.4. Linkages to other services and levels of care within the health care system. The review shall be documented in writing.
6.5. Clients shall be enrolled or admitted for birthing services only after evaluation by the clinical staff.
6.6. The governing body shall appoint an administrator or director who has the responsibility for implementing the policies and procedures of the birthing center and for the administrative operation of the center.
6.7. No birthing center which offers such services shall deny acceptance to a prospective client on grounds of race, color, religion, or national origin.
6.8. No client shall be segregated, given separate treatment, restricted in the enjoyment of any advantage or privilege enjoyed by other clients of the birthing center or provided with any aid, care services or other benefits which are different or are provided in a different manner from those provided to other clients on the grounds of race, color, religion or national origin.
W. Va. Code R. § 71-13-7 Clinical Staffing
7.1. There shall be sufficient, qualified staff available to perform the services offered by the birthing center. In evaluating the numbers and qualifications of staff, the director shall consider the following criteria: (a) the number and type of clients of the center; (b) the type of services provided by the center; (c) the education, training and experience of the staff as it relates to their job responsibilities; (d) any specific requirements of these regulations; (e) professional credentials; and (f) state professional licensure requirements. All staff and any consultants or volunteers providing services under the auspices of the birthing center who are required by state law to be licensed, registered or certified shall have valid licenses, registrations or certificates, copies of which licenses, registrations or certificates shall be on file with the facility.
7.2. A physician certified by the American Board of Obstetrics and Gynecology or who is otherwise qualified and authorized by training and experience as a practitioner in obstetrics shall participate in the development of and the review of clinical policies and procedures of the birthing center.
7.3. All policies and procedures relating to client care shall be approved and reviewed on a yearly basis by a physician meeting the requirements of Section 7.2. of these rules and regulations.
7.4. A physician certified by the American Board of Obstetrics and Gynecology or a physician who is otherwise qualified and authorized by training and experience and who is recognized by peers in the community as an experienced, competent practitioner in obstetrics shall be immediately available by telephone 24 hours a day. The birthing center shall provide written evidence of physician availability.
7.5. A physician or nurse midwife shall be present at each birth. A second person, who is an employee or member of the clinical staff with resuscitation skills shall be immediately available during each birth.
7.6. The clinical staff shall develop and adopt rules and procedures, subject to the approval of the governing body, which shall include requirements for clinical staff membership, delineation of clinical privileges and responsibilities, and the organization of the clinical staff.
7.7. Qualified staff shall be present in the birthing center at all times when clients are present. In evaluating the necessary qualifications, the director shall take into account the particular type of service scheduled and other factors as specified in these rules and regulations.
W. Va. Code R. § 71-13-8 Clinical Policies and Procedures
8.1. There shall be written policies, including detailed definitions of, screening criteria for, and procedures for identifying: (a) low-risk maternal clients who shall be eligible for birthing services offered by the birthing center; and (b) individuals who shall be ineligible for birthing services at the birthing center.
8.2. There shall be written policies and procedures, including detailed definitions or criteria for: (a) identification and transfer of clients who, during the course of pregnancy, are determined to be ineligible; and (b) identification and transfer of clients who, during the course of labor or recovery, are determined to be ineligible for continued care in the birthing center.
8.3. There shall be written plans and procedures for consultation, backup services, transfer and transport of a newborn or maternal client to a hospital where appropriate care is available.
8.4. Clinical policies and procedures shall be developed for routine and for emergency care of both the maternal and the fetus or newborn client until completion of care by the birthing center either through completion of the care program or through transfer to other levels of care.
8.5. The center shall provide written evidence of the availability of emergency transport services for clients.
8.6. There shall be provision for emergency admission of clients to a hospital by at least one of the following methods: (a) the attending physician or the consultant physician on call shall have admitting privileges at the hospital to be utilized for emergency transfer; or (b) there shall be a written agreement with a hospital for emergency services and admissions. A hospital policy statement concerning emergency procedures and admissions may, at the director's discretion, be accepted as satisfying this requirement.
8.7. There shall be provision for the education, orientation and training of clients, family and support persons in pregnancy, childbirth and newborn care.
8.8. Procedures shall be adopted and implemented for the registration of births and the examination for and the reporting of congenital physical and mental impairments in infants in accordance with state law found at W. Va. Code §§16-5-1, et seq.
8.9. Prophylactic treatment of the eyes of the newborn shall be performed in accordance with W. Va. Code §16-3-1, et seq. and any regulations promulgated thereunder.
8.10. The birthing center shall comply with state law relating to the testing for phenylketonuria, galactosemia and hypothyroidism as found at W. Va. Code §§16-22-1, et seq., and any rules promulgated thereunder.
8.11. There shall be procedures for infection control which shall include consideration of housekeeping, cleaning, sterilization, sanitization and storage of supplies and equipment, and health of personnel.
8.12. Health records for personnel shall include documented evidence of a tuberculosis screening if indicated by exposure or prevalence.
8.13. Employees with any communicable disease in an infectious stage shall not be on duty.
8.14. The birthing center shall adopt and implement a program for documented reviews of the quality of the management of the care of clients. Such program shall include: (a) regular staff meetings and case presentations; (b) midwifery audit; and (c) evaluation of routines for infection control, equipment maintenance and emergencies. Drills in emergency procedures shall be a component of the quality review program.
8.15. Clinical policies and procedures shall be organized and indexed and shall be readily available on site for staff use and inspection at all times.
W. Va. Code R. § 71-13-9 Pharmaceuticals
9.1. There shall be written prescriptions or orders signed by a practitioner legally authorized to prescribe for all drugs administered to clients within the birthing center.
9.2. There shall be policies and procedures addressing the receiving, transcribing, and implementing of orders for administration of drugs.
9.3. Written policies shall be established addressing the type, and intended use of any drug to be used by patients within the facility.
9.4. Anesthetic agents other than local anesthetics and pudendal blocks shall not be used.
9.5. Drugs shall be administered only by personnel or clinical staff licensed to administer drugs.
9.6. Drugs, medications and chemicals kept anywhere in the center shall be clearly labeled with drug name, strength, and expiration date.
9.7. Drugs, chemicals, and medications shall be stored and secured in specifically designated cabinets, closets, drawers, or storerooms and made accessible only to authorized persons.
9.8. Drugs shall not be stored in a refrigerator used for food storage for clients and families.
9.9. Poisonous chemicals, caustic materials, or drugs shall show appropriate warning or poison labels and shall be stored separately from other drugs. Drugs for external use shall be separated from drugs for internal use.
9.10. The birthing center shall be in conformance with any applicable federal, state and local laws and regulations relating to drugs and to controlled substances.
W. Va. Code R. § 71-13-10 Records
10.1. The birthing center shall maintain a clinical record system, policies and procedures which provide for identification, security, confidentiality, control, retrieval and preservation of client care data and information.
10.2. There shall be a health record maintained for each maternal and newborn client to include:
10.2.1. Personal and family history;
10.2.2. Physical examination;
10.2.3. Reports of relevant laboratory tests and screening procedures;
10.2.4. Newborn and maternal status during the prenatal period, labor, birth, recovery and follow-up;
10.2.5. Reports of any outside tests, examinations and treatments requested by the birthing center during the course of care of the maternal and newborn client;
10.2.6. All services provided to both the maternal and the newborn client; and
10.2.7. Documentation and authentication by staff who order or who administer drugs or treatments or who make observations or assessments.
10.3. Entries in the client record shall be typewritten or written legibly in ink.
10.4. Documentation and record keeping shall include completion of birth or death certificates.
10.5. Records shall be retained for a period of 20 years.
W. Va. Code R. § 71-13-11 Client Rights
11.1. Clients shall be informed in writing of their rights and responsibilities.
11.2. Clients shall be clearly informed of the responsibilities of the birthing center for the care of the client, including services to be provided and risks during pregnancy, labor, birth, recovery and follow-up. Information given shall include as one element the travel time to a hospital emergency facility.
11.3. Clients shall be clearly informed in writing of the costs of services to be provided and of any required services or procedures not included in the charges of the center.
11.4. Upon written request, the birthing center shall supply a client with an itemized statement detailing services provided and charges assessed at no additional cost to the client.
11.5. Clients shall be informed in writing that the Office of Health Facility Licensure and Certification licensure requirements do not, by law, include any standards relating to acceptable site characteristics, physical environment or clinical equipment.
11.6. Clients shall have the right to participate in the development of their care plans.
11.7. Clients or their authorized agents or representatives shall have the right to examine their records at reasonable times and shall upon written request be provided with a copy or summary of their record within a reasonable period of time. The birthing center shall also comply with other provisions of state law found at W. Va. Code §§29-1-1, et seq., relating to client records. The birthing center shall have the right to charge a reasonable fee to cover the cost of reasonable expenses incurred in providing the copy.
W. Va. Code R. § 71-13-12 Penalties
12.1. Director's Authority.
12.1.1. The director, in consultation with the Inspector General, is authorized to suspend or revoke a birthing center license according to the provisions of W. Va. Code §16B-20-2, if he or she finds upon inspection that there has been a substantial failure to comply with the provisions of these rules and regulations or with the laws of this state or with any order or final decision of the director.
12.2. The director, in consultation with the Inspector General, may refuse to grant a license if he or she finds that the applicant has attempted to obtain the license by means of fraud or deceit.
12.3. The director, in consultation with the Inspector General, may suspend or revoke a license if he or she finds that the license has been obtained by means of fraud or deceit.
12.4. When the director, in consultation with the Inspector General, takes action pursuant to the suspension or revocation of a license issued under these rules and regulations, he or she shall comply with the requirements and procedures specified by W. Va. Code §16B-20-2.
W. Va. Code R. § 71-13-13 Administrative Due Process
13.1. An applicant for a license or a licensee or any other person aggrieved by an order or other action by the director pursuant to these regulations or the laws of this State shall have the opportunity for a hearing by the Board of Review, upon written request to the director in a manner prescribed in and by the aforementioned Rules of Procedure for Contested Case Hearings and Declaratory Rulings (1983) set forth in W. Va. Code R. §§64-1-1, et seq. The aforementioned rules of procedure are incorporated herein by reference.
13.2. A hearing pursuant to this section shall be conducted in accordance with the pertinent provisions of W. Va. Code §§29A-5-1, et seq., and the aforementioned Rules of Procedure for Contested Case Hearings and Declaratory Rulings (1983), W. Va. Code R. §§64-1-1, et seq.
13.3. The Board of Review’s order shall be final unless vacated or modified by judicial review in accordance with the provisions of the law of this State.
W. Va. Code R. § 71-13-14 Severability
If any provisions of these rules or the application thereof to any person or circumstance shall be held invalid, such invalidity thereof shall not affect the provisions or application of these rules which can be given effect without the invalid provisions or application, and to this end the provisions of these rules are declared to be severable.
Series 14 Hospice Licensure Rule
W. Va. Code R. § 71-14-1 General
1.1. Scope. -- This legislative rule establishes general standards and procedures for the licensure of hospice programs in West Virginia.
1.2. Authority. -- W. Va. Code §16B-8-3.
1.3. Filing Date. – May 28, 2025.
1.4. Effective Date. -- May 28, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
1.6. Applicability. -- This rule applies to any person, partnership, association or corporation and any local governmental unit or any division, department, board or agency thereof establishing, conducting, managing or operating a hospice. The hospice shall be in compliance with the standards in this rule and shall be evaluated independently from compliance with other licensure standards. A hospice may share staff, space, physical facilities and equipment or other components only if the requirements of each applicable rule are satisfied in full.
1.7. Enforcement. -- This rule is enforced by the Inspector General or his or her designee. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule.
1.8. Purpose. -- The purpose of this rule is to ensure that all West Virginia hospices conform to a common set of standards and procedures. All standards and procedures are minimum requirements whereby hospices may be surveyed and evaluated to ensure the health and safety of all patients treated in West Virginia hospices.
W. Va. Code R. § 71-14-2 Definitions
2.1. Administrator. -- A qualified person who possesses the education and experience required by the hospice’s governing body. The administrator reports to the governing body and is responsible for the day-to-day operation of the hospice.
2.2. Director. -- The Director of the Office of Health Facility Licensure and Certification, or his or her designee.
2.3. Emergency Medication Kits. -- Medication provided in the home that is not routine for the patient and may be required for emergency symptom management.
2.4. Governing Body. -- The designated persons assuming full legal authority and responsibility for the management of the hospice, the provision of all hospice services, its fiscal operations, and continuous quality assessment and performance improvement.
2.5. Hospice. -- A coordinated program of home and inpatient care provided under the direction of an identifiable hospice administration which provides palliative and supportive medical and other health services to terminally ill individuals and their families. Hospice uses a medically directed interdisciplinary team. A hospice program of care provides care to meet the physical, psychological, social, spiritual and other special needs which are experienced during the final stages of illness and during dying and bereavement.
2.6. Inpatient Hospice Facility. -- A satellite location of a hospice that provides inpatient services directly at a facility provided by the Director.
2.7. Inspector General. – The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1, or his or her designee.
2.8. NFPA. -- National Fire Protection Association.
2.9. Office of Health Facility Licensure and Certification. – The West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
2.10. Restraint. -- Any medication used to control behavior or to restrict the patient’s freedom of movement which is not part of the standard treatment for a patient’s medical or psychiatric condition, or any physical or mechanical device, material, or equipment attached to the patient’s body that he or she cannot easily remove and restricts freedom of movement or normal access of the patient to his or her body.
2.11. Satellite Location. -- A state approved location that provides hospice care and services within a portion of the total geographic area served by the hospice provider. The satellite location is part of the hospice and shares the same name, administration, and services in a manner that renders it unnecessary for the satellite location to independently meet this rule.
W. Va. Code R. § 71-14-3 State Administrative Procedures
3.1. General Licensure Provisions
3.1.1. A person, partnership, association, corporation, or any governmental unit or any division, department, board or agency thereof may not operate a hospice, satellite location or inpatient facility in the State of West Virginia without first obtaining a license under this rule.
3.1.2. An original or a renewal license shall not be issued under this rule for a project reviewable under W. Va. Code §§16-2D-1, et seq., unless the Health Care Authority has issued a determination, after a final conformance review, that the completed project conforms to the terms of the Certificate of Need decision issued for the project. The hospice shall supply evidence of compliance with the Health Care Authority when submitting licensure applications to the Director.
3.1.3. A license is valid only for the premises and persons named and described in the application.
3.1.4. A license is not transferable or assignable.
3.1.5. A license is issued to applicants who are in compliance with the conditions of this rule, W. Va. Code §§16B-8-1, et seq., and the Hospice Conditions of Participation promulgated by the Centers for Medicare and Medicaid Services.
3.1.6. A hospice shall surrender its license to the Director:
3.1.6.a. Upon written demand stating the cause for the demand; or
3.1.6.b. In the event the hospice ceases to provide services.
3.1.7. A hospice shall report a proposed change of ownership, including a change in a controlling interest, to the Director a minimum of 60 days prior to the change.
3.1.7.a. A new owner shall immediately apply for a new license.
3.1.7.b. A new owner’s application for a license has the effect of a valid license for three months from the date the application is received by the Director.
3.1.8. A license shall state:
3.1.8.a. The specific name of the hospice to which it applies;
3.1.8.b. The date of its issuance; and
3.1.8.c. Its expiration date.
3.1.9. A hospice name change shall be shown on the next license issued.
3.1.10. The license shall be posted in a conspicuous and public place of the hospice.
3.1.11. Any hospice, satellite location or inpatient facility’s advertisement shall contain the legal name provided to the Director at the time of application.
3.1.12. A hospice shall apply and receive notification and approval from the Director before a hospice may operate an inpatient facility, satellite location or any other location.
3.2. Initial License.
3.2.1. An applicant shall submit a completed application to the Director, on a form prescribed by the Director, not less than 30 days and not more than 90 days prior to the date proposed for commencement of operation for a hospice office, satellite location or an inpatient facility. A non-refundable fee of $100 shall be submitted with the application for the initial license.
3.2.2. A hospice shall identify the following as part of the application:
3.2.2.a. The hospice’s operating name, the office location, the mailing address and telephone number;
3.2.2.b. The name and title of its administrator or other contact person;
3.2.2.c. A listing of services the hospice intends to offer either directly or by contractual agreement;
3.2.2.d. Written evidence that the building or part of the building in which the hospice office, satellite location or inpatient facility is to be located is in compliance with applicable local zoning, building and fire safety laws and chapters;
3.2.2.e. The mailing address, phone number and location of each satellite location or inpatient facility;
3.2.2.f. A copy of a valid Certificate of Need or a letter of exemption from the West Virginia Health Care Authority; and
3.2.2.g. The name, address, principal occupation and official position of all persons who have an ownership interest in the hospice or the name, address, principal occupation, and official position of each member of the board of directors, if a corporation owns the hospice.
3.2.3. If, at the initial licensing survey, an agency has more than five violations of any minimum requirements or if any of the violations are determined to be of such a serious nature that they may cause or have the potential to cause harm, the Director shall deny licensing until the hospice is found to be in substantial compliance with this rule.
3.2.4. The Director shall issue an initial license only after the Director or his or her designee inspects the hospice or inpatient facility and finds the hospice complies with this rule and W. Va. Code §§16B-8-1, et seq.
3.2.5. An initial license issued is valid for a period of one year from the date of issuance.
3.2.6. The Director may inspect a satellite location prior to the issuance of a license.
3.3. Renewal License.
3.3.1. An applicant for a renewal license shall submit a completed application to the Director, on a form prescribed by the Director, not less than 60 days and not more than 90 days prior to the scheduled expiration date of the current license. A non-refundable fee of $100 shall be submitted with the license renewal application for a hospice whose yearly caseload exceeds ten or more patients, and $50 for a hospice whose yearly caseload is fewer than ten patients.
3.3.2. The Director shall issue a renewal license when he or she finds the hospice is determined to be in compliance with this rule and W. Va. Code §§16B-8-1, et seq. and the licensee submits a completed application and the correct renewal fee.
3.3.3. A renewal license is valid for a period of one year from the date of issuance.
3.3.4. The Director shall issue a renewal license to each hospice office, satellite location and inpatient facility.
3.4. Inspections.
3.4.1. The Director shall inspect all hospices that are subject to the provisions of this rule and W. Va. Code §§16B-8-1, et seq., periodically and at least as often as required by the Centers for Medicare and Medicaid Services in order to determine compliance with the provisions of this rule, W. Va. Code §§16B-8-1, et seq., and the Hospice Conditions of Participation promulgated by the Centers for Medicare and Medicaid Services.
3.4.2. The Director shall inspect or investigate a main hospice office, satellite location, inpatient facility or office advertised with the hospice name as he or she considers necessary.
3.4.2.a. The Director shall conduct an unannounced inspection of a hospice, satellite location or inpatient facility. This inspection may include home visits with prior patient consent, interviews with agency staff and family members, reviews of clinical records, environmental and life safety inspections and any other documents necessary for the determination of compliance with this rule.
3.4.3. The Director may enter the premises of any hospice the Director has reason to believe is being operated or maintained as a hospice without a license.
3.4.3.a. If the owner or person in charge of a licensed hospice or of an unlicensed hospice which the Director has reason to believe is being operated as a hospice refuses entry pursuant to this rule, the Director, in consultation with the Inspector General, shall petition the Circuit Court of Kanawha County for an inspection warrant.
3.4.3.b. If the Director finds on the basis of the inspection that any person, partnership, association or corporation and any local governmental unit or any division, department, board or agency thereof is operating as a hospice without a license, the hospice shall apply for a license within ten days, in accordance with the provisions of this rule.
3.4.4. A hospice that fails to apply for a license is subject to the penalties established by W. Va. Code §§16B-8-1, et seq.,
3.4.5. The Director shall maintain a written report of the inspection on file.
3.4.6. The Director shall send the inspection report to the hospice.
3.4.7. The hospice shall submit to the Director a plan of correction to any violations of this rule or W. Va. Code §§16B-8-1, et seq., identified during an inspection of a hospice, satellite location or inpatient facility.
3.5. Complaint Investigation.
3.5.1. Any person may register a complaint with the Director alleging violation of applicable laws, rules or requirements by a hospice. The complaint shall state the substance of the complaint, the patient’s name if applicable and the hospice involved.
3.5.2. The Director may conduct an unannounced inspection of a hospice, satellite location or inpatient facility to determine the validity of the complaint.
3.5.3. The Director shall notify the complainant in writing that an investigation was conducted.
3.5.4. The Director shall notify the hospice in writing of the results of the investigation no later than 15 working days after completing the investigation.
3.5.4.a. If the complaint is substantiated by the investigation as a violation of this rule or W. Va. Code §§16B-8-1, et seq., the Director shall require the hospice to develop a plan of correction or may take other action authorized by state law or this rule.
3.6. Plans of Correction.
3.6.1. A hospice, satellite location or inpatient facility found to have deficiencies based on an inspection or complaint investigation shall develop a plan of correction and submit it to the Director within ten calendar days of receipt of the inspection report.
3.6.2. A plan of correction shall specify a reasonable time within which a hospice shall correct each deficiency cited in the report and in any case shall be no more than 60 days after the date of the inspection.
3.6.3. The Director may approve or reject a plan of correction submitted by a hospice. The Director shall notify the hospice within 15 working days whether a plan of correction has been approved or rejected. If the Director rejects the plan, he or she shall state the reasons for the action. When the Director rejects a plan of correction, the Director may give the hospice up to ten calendar days for submission of a revised plan.
3.6.4. Upon failure of a hospice to submit an approved plan of correction or to correct any deficiency within the time specified in the approved plan of correction, the Director may initiate action in accordance with W. Va. Code §§16B-8-1, et seq.
3.7. Availability of Reports.
3.7.1. The Director shall make a copy of the inspection report available upon written request. A reasonable fee may be charged to cover the cost of research and copying.
3.7.2. The Director shall treat the inspection report as public information from the time a written plan of correction is received and accepted by the Director.
3.7.3. The hospice shall submit a plan of correction to the Director within 20 calendar days or the report will be made available to the public.
3.7.4. Nothing contained in this section shall be construed to require or permit the public disclosure of confidential medical, social, personal or financial records of any patients.
W. Va. Code R. § 71-14-4 Organization and Management
4.1. A hospice shall have a governing body that determines, implements and monitors policies governing the hospice’s total operation in accordance with established bylaws.
4.1.1. If a hospice is operated by a hospital, nursing home or other type of organization, there shall be an identifiable separate administration which serves the function of the governing body for a hospice program, although a separate ownership or board of directors is not required.
4.1.2. The governing body shall meet at least annually to review the hospice’s total operation including at a minimum:
4.1.2.a. Policy review;
4.1.2.b. Provision and coordination of inpatient care and in home care;
4.1.2.c. The quality assessment and performance improvement committee’s reports and actions; and
4.1.2.d. Any other reviews necessary to determine adequate care, treatment, health, safety, welfare and comfort of hospice patients.
4.1.3. Annual reviews shall be documented by signed meeting minutes kept at the hospice.
4.2. The governing body shall designate a person who is responsible for the day-to-day operation of the hospice.
4.2.1. The person designated shall be qualified by education or training as specified in a job description developed by the governing body.
4.2.2. The person designated shall be responsible for the overall supervision of all staff working on behalf of the hospice.
4.2.3. The person designated shall be responsible for the overall development of staff qualifications and shall develop and approve job descriptions for each job classification.
4.2.4. Each job description shall designate by job title who is responsible for supervision for all licensed and unlicensed staff providing services to the hospice.
4.3. The governing body shall develop and maintain a current organizational chart which clearly delineates the lines of authority and supervision of all staff.
4.4. The hospice shall develop and implement written policies and procedures consistent with this rule.
4.4.1. Policies and procedures shall accurately reflect a description of the hospice’s goals, methods by which these goals are sought, and mechanisms by which the hospice care services are delivered.
4.4.2. The interdisciplinary team shall review the clinical policies and procedures annually and shall document the review by a dated signature.
4.4.3. The interdisciplinary team shall revise the clinical policies and procedures as needed.
4.5. The hospice shall maintain clinical records and business records pertaining to the patient according to hospice policy.
4.5.1. The hospice shall establish policies and procedures specifying who may use the records, under what conditions the records may be removed from the hospice and under what conditions the information from the records may be released.
4.5.2. A hospice that discontinues operation shall inform the Director, in writing, where the clinical and business records are stored and how the records may be accessed.
4.5.3. The hospice shall take measures to ensure the safety of the clinical and business records.
4.5.4. The patient or his or her legal representative has the right to examine the patient’s clinical record at reasonable times and shall, upon written request, be provided with a copy or a summary of the clinical record within a reasonable time. A hospice shall comply with other provisions of W. Va. Code §§16-29-1, et seq.
4.6. The patient or his or her legal representative may voice complaints regarding the care or lack of care and services provided by the hospice.
4.6.1. The person designated by the governing body for the day to day operation of the hospice shall be responsible for the complaint process.
4.6.2. The hospice shall designate a person or persons who shall be responsible for reviewing and investigating allegations.
4.6.3. The hospice shall communicate the results of the investigation to the patient or his or her legal representative as soon as possible but no later than 30 days after the receipt of the complaint.
4.6.4. The hospice shall maintain documentation of the investigation until the next re-certification survey.
4.7. The hospice shall have a legally binding contract for any services provided by contract at the hospice.
4.7.1. The contract shall state the services to be provided.
4.7.2. The contract shall state how the hospice will be responsible for the supervision of services.
W. Va. Code R. § 71-14-5 Provision of care
5.1. A hospice shall provide services seven days a week, 24 hours a day to meet the needs of the patient.
5.2. A hospice shall provide the services described in sections 5.6. and 5.7. of this rule to the extent necessary to meet the needs of patients that are reasonable and necessary for the palliation and management of the terminal illness.
5.3. The hospice shall make services available at the patient’s place of residence.
5.3.1. Services provided to patients residing at skilled nursing facilities, nursing facilities, intermediate care facilities for the mentally retarded or any other facilities, shall meet all the same requirements as any other patient of the hospice and the hospice shall have an agreement for services.
5.3.1.a. The hospice shall retain professional management of hospice care.
5.3.1.b. The hospice shall ensure continuity of care.
5.3.1.c. The hospice shall ensure care is provided in accordance with the plan of care.
5.3.1.d. The hospice shall develop a way to monitor and supervise hospice services in these facilities.
5.4. Services shall be provided in a manner consistent with accepted standards of practice.
5.5. Services shall be provided under the supervision of a hospice Interdisciplinary Team.
5.6. The hospice shall provide the following services at a minimum:
5.6.1. Physician services which shall meet the medical needs of the patients for the palliation and management of the terminal illness. The medical director and hospice physicians shall be licensed according to the West Virginia Board of Medicine or the West Virginia Board of Osteopathy and are subject to the rules of the Board. Nurse practitioners, when serving as the patient’s attending physician, shall be licensed according to the West Virginia Board of Examiners for Registered Professional Nurses and are subject to the rules of the Board;
5.6.2. Nursing services which shall meet the nursing needs of all patients for the palliation and management of the terminal illness. Each patient shall be under the care of a Registered Nurse, who is licensed by the West Virginia Board of Examiners for Registered Professional Nurses. Licensed Practical Nurses shall be licensed by the West Virginia State Board of Examiners for Licensed Practical Nurses;
5.6.3. Medical social services which shall meet the needs of the patients for the palliation and management of the terminal illness. The medical social worker shall have at least a Bachelor’s degree from an accredited Social Work study and be licensed in accordance with the West Virginia Board of Social Work Examiners;
5.6.4. Spiritual care which shall meet the spiritual needs of the patients. Spiritual care shall be provided under the direction of a person who has received education or training in providing spiritual care;
5.6.5. Bereavement services which are provided up to one year after a patient has died. Bereavement services shall be provided under the direction of a person who has received education or training in bereavement counseling;
5.6.6. Interdisciplinary team services which includes a Physician, Registered Nurse, Social Worker, Counselor and any other services required to meet the needs of the patient for the palliation and management of the terminal illness; and
5.6.7. Nutritional counseling which shall meet the needs of the patients.
5.7. The hospice shall provide additional services as needed for the support and care of hospice patients.
5.7.1. Therapy services shall be provided under the supervision of a Physical Therapist, Occupational Therapist or Speech Pathologist Therapist as needed for the palliation and management of the terminal illness.
5.7.1.a. The Physical Therapist or Physical Therapist Assistant shall be licensed and supervised in accordance with the West Virginia Board of Physical Therapy.
5.7.1.b. The Occupational Therapist or Certified Occupational Therapy Assistant shall be licensed and supervised in accordance with the West Virginia Board of Occupational Therapy.
5.7.1.c. The Speech - Language Pathologist shall be licensed in accordance with the West Virginia Board of Examiners Speech-Language Pathology and Audiology.
5.7.2. The hospice shall provide Home Health Aides and homemaker services to meet the personal care needs of the patient.
5.7.2.a. The Home Health Aide shall be competency evaluated for all duties he or she performs.
5.7.2.b. The Home Health Aide shall be under the supervision of a Registered Nurse. A Registered Nurse shall make an onsite visit to the patient’s place of residence no less than every 14 days to assess the home health aide’s services. The home health aide does not need to be present during this visit. A Registered Nurse shall make an onsite visit to the patient’s place of residence in order to observe and assess each aide while he or she is performing care no less than every 28 days.
5.7.2.c. The Homemaker shall be under the supervision of the Registered Nurse and shall be supervised directly at the patient’s residence by the Registered Nurse every 30 days.
5.7.3. The hospice shall provide nutritional services to meet the dietary needs of the patient. These services shall be under the direction of a person who is qualified by training or education.
5.7.4. The hospice shall provide pharmaceutical services to meet the patients’ needs for palliative care and symptom management. The Pharmacist shall be licensed in the state in which he or she practices.
5.7.5. The hospice shall provide volunteer services to meet the patient’s needs. The services shall be provided under the direction of a person qualified by training or education.
5.7.6. The hospice shall provide Respite and Inpatient care for patient symptom management or caregiver relief. The care shall be provided in a facility acceptable to the Centers for Medicare and Medicaid Services for this purpose.
5.7.7. The hospice shall provide continuous care nursing on a 24-hour basis for palliative care and symptom management at the patient’s residence during periods of crisis.
5.7.8. The hospice shall provide medical supplies including drugs and biologicals, as needed for the patient’s palliation and symptom management.
5.8. A hospice program shall provide or arrange a competency evaluation, employee training and continuing education program.
5.8.1. The hospice shall ensure all licensed and unlicensed staff are competent to perform the duties assigned to them.
5.8.2. The orientation and continuing education program for all patient care staff shall contain at a minimum:
5.8.2.a. Orientation and training for new employees to acquaint them with the philosophy, organization, services, practices and goals of the hospice program;
5.8.2.b. The psychological aspects of terminal disease and the hospice’s goal in providing palliative care and supportive services;
5.8.2.c. Family dynamics and psychosocial issues surrounding terminal disease, death and bereavement;
5.8.2.d. Communication and documentation skills;
5.8.2.e. Policies and services of the hospice;
5.8.2.f. The role of the plan of care in determining the services to be provided;
5.8.2.g. Ethics, confidentiality of patient information, patient and family rights and grievance procedures; and
5.8.2.h. Additional initial and continued training needed specific to the duties, responsibilities and the competency of the employee.
5.9. A hospice shall admit a patient only on the recommendation of the medical director or physician designee in consultation with the patient’s attending physician.
5.10. The hospice shall not deny acceptance of a patient to the hospice service based on race, color, national origin, age, sex, religion or ethnicity.
5.11. The hospice shall inform a patient or his or her legal representative in writing at the time of admission and again per hospice policy with any changes to the following:
5.11.1. The responsibilities of a hospice in regard to the care of the patient, including services to be provided by the hospice and the patient’s and caregiver’s role in the care;
5.11.2. The materials and equipment available to the patient and family;
5.11.3. Any existing pre-payment, refund or sliding scale fee policy;
5.11.4. A statement of the patient’s and family’s financial responsibility if any;
5.11.5. The phone number of the Office of Health Facility Licensure and Certification with instructions on how to make a complaint; and
5.11.6. The drugs and biologicals for which the patient and the hospice would be responsible.
5.12. Once a patient has been accepted for care, care shall not be reduced due to the patient’s inability to pay for the care unless the following requirements are met:
5.12.1. A list of services is provided to the patient or his or her legal representative detailing what the patient is responsible for with the dollar amount of those services; and
5.12.2. A review of the patient’s finances and referrals to outside agencies shall determine no further financial assistance is available and the patient or his or her legal representative refused continued services based on this assessment.
5.13. A hospice may discharge a patient if:
5.13.1. The patient moves out of the hospice service area or transfers to another hospice;
5.13.2. It determines the patient no longer meets the terminally ill diagnosis; or
5.13.3. Its policy determines justifiable reason for the discharge.
5.14. A hospice shall assist a patient in obtaining necessary follow-up care before discharging or transferring the patient and shall give the patient at least a 48-hour notice of the pending discharge from hospice services. This notice may be less than 48 hours in the event of a patient discharge for staff safety reasons.
5.15. A hospice shall complete a discharge summary to provide important clinical information to health care professionals assuming the care of the patient.
5.15.1. The hospice shall provide a discharge summary along with pertinent hospice documentation to the patient’s attending physician.
5.15.2. The hospice shall provide the discharge summary along with pertinent hospice documentation to the agency or facility assuming the patient’s care.
5.16. A hospice shall supply an itemized statement detailing services provided and charges assessed at no additional cost upon request from the patient or his or her legal representative.
W. Va. Code R. § 71-14-6 Coordination of care
6.1. At the time an individual is accepted for care, or no later than the second calendar day, a hospice shall obtain documentation from the attending physician and the physician member of the hospice interdisciplinary team or medical director stating the client is terminally ill.
6.1.1. The physician shall certify the patient to be terminally ill, indicating a life expectancy of six months or less or another length of time as determined by the Centers for Medicare and Medicaid Services and designated in federal hospice regulations.
6.1.2. A verbal certification shall be obtained and signed by both physicians if the written certification is not obtained by both physicians within two calendar days following the initiation of hospice care.
6.1.3. The certification may be completed up to two weeks before hospice care is elected.
6.2. The physician member of the hospice interdisciplinary team or medical director shall document re-certification of the terminal illness at the end of the first 90 days of care and again at the end of the second 90 days of care if the patient remains under the care of the hospice.
6.3. A patient remaining under the care of a hospice for a period of time in excess of six months shall be re-evaluated every 60 days by the physician member of the interdisciplinary team or medical director with respect to the prognosis for life expectancy. A patient shall be considered for transfer to other types of health care providers in the event of an improvement in his or her medical condition.
6.3.1. The documentation shall be included in the clinical record and shall be signed by the hospice physician within 14 days of the re-evaluation assessment.
6.4. A registered nurse shall make an initial assessment evaluation visit to the patient’s residence in a time frame consistent with Medicare hospice guidelines after a hospice receives a physician’s order for care, unless ordered otherwise by the physician, to determine the patient’s immediate care and support needs.
6.5. The medical social worker shall make an initial home visit to assess the patients’ needs in a time frame consistent with Medicare hospice guidelines after the initial visit by the registered nurse.
6.6. The initial spiritual assessment and documentation of volunteer services shall be conducted after the initial visit in a time frame consistent with Medicare hospice guidelines.
6.7. All other assessments shall be conducted in a time frame consistent with Medicare hospice guidelines.
6.8. The interdisciplinary team, in consultation with the patient’s attending physician, shall complete a comprehensive assessment in a time frame consistent with Medicare hospice guidelines.
6.8.1. The comprehensive assessment shall include an assessment of the patient’s physical, psychosocial, emotional and spiritual needs and a family bereavement assessment.
6.9. The interdisciplinary team shall develop an interdisciplinary plan of care within seven days of the patient’s acceptance into the hospice program.
6.9.1. The plan of care shall contain at a minimum the following:
6.9.1.a. A diagnosis and prognosis;
6.9.1.b. Orders for each service that includes the scope and frequency of visits needed to meet the patient’s needs;
6.9.1.c. Orders for medications and treatments;
6.9.1.d. Orders for medical tests; and
6.9.1.e. Any other information needed to meet the needs of the patient for palliation and management of the patient’s terminal illness.
6.9.2. The interdisciplinary team shall update the plan of care as frequently as the patients condition requires:
6.9.2.a. But no less than every 14 days; and
6.9.2.b. At the time of each re-certification.
6.9.3. All personnel representing the scope of services being provided to the patient shall participate in the plan of care.
6.9.4. The patient and his or her family shall be included in the establishment and review of the plan of care.
6.10. When the patient requires an inpatient stay for services related to the hospice diagnosis, the hospice shall provide, at a minimum, the written interdisciplinary team plan of care to the facility within 24 hours of the patient’s transfer.
6.10.1. An inpatient stay for acute symptom management shall:
6.10.1.a. Be provided in a facility acceptable to the Centers for Medicare and Medicaid Services for this purpose, and;
6.10.1.b. Include the hospice, ensuring a Registered Nurse is directly available for care of the patient at all times.
6.10.2. Respite care for caregiver relief shall:
6.10.2.a. Be provided in a facility acceptable to the Centers for Medicare and Medicaid Services for this purpose.
6.10.3. Upon transfer to an inpatient facility the hospice nurse shall make a visit to the facility to provide instructions and ensure the patient’s continuity of care.
6.10.3.a. If the visit to the facility cannot be completed on admission, then the hospice shall contact the facility with a verbal report to the nursing staff and follow up with a visit within 48 hours of the transfer.
6.10.4. The plan of care shall be updated to reflect the change in the patient’s status.
6.10.5. The hospice shall continue to make visits as noted in the plan of care to the patient during the inpatient stay to ensure the continuity of care.
W. Va. Code R. § 71-14-7 Infection Control
7.1. A hospice shall maintain an effective infection control program that protects the patients, their families and hospice personnel by preventing and controlling infections and communicable diseases.
7.2. The program shall include the implementation of a nationally recognized system of infection control guidelines.
7.3. A hospice shall designate a person or persons responsible for the education and training of all staff in regard to infection control.
W. Va. Code R. § 71-14-8 Quality Assessment and Performance Improvement
8.1. A hospice shall establish a quality assessment and performance improvement program that ensures quality of care is provided to all patients. The program shall monitor, identify and take corrective actions to identified problems.
8.2. The hospice shall designate a person or persons responsible for the quality assessment and performance improvement program.
8.3. The designated person or persons of the quality assessment and performance improvement program shall have a written plan for the annual review and evaluation of all hospice care and services.
8.4. The annual review and evaluation shall include a representative of each hospice service offered.
8.5. The annual review shall be sent to the governing body for review.
W. Va. Code R. § 71-14-9 Volunteer Services
9.1. A hospice shall use volunteers in the provision of care and services under the direction of the interdisciplinary team.
9.2. The hospice shall designate a person or persons responsible for the training, education and supervision of volunteers.
9.3. A hospice shall develop written policies and procedures for volunteers providing care and services.
9.4. A hospice shall document the training of volunteers. The training shall contain at a minimum:
9.4.1. Volunteer duties and responsibilities;
9.4.2. The person or persons to whom the volunteer reports;
9.4.3. The person or persons to contact if the volunteer needs assistance and instructions regarding the performance of his or her duties and responsibilities;
9.4.4. Confidentiality and protection of the patient’s and family’s rights;
9.4.5. Procedures to be followed in an emergency;
9.4.6. Job responsibilities specific to the individual’s responsibilities;
9.4.7. Instructions on documentation of volunteer hours and documentation of patient contacts; and
9.4.8. Training regarding procedures to follow at the time of a patient death;
9.5. A hospice shall ensure volunteers document patient encounters which are included in the clinical record.
9.6. A hospice shall provide and document a continuing education program for volunteers.
W. Va. Code R. § 71-14-10 Counseling Services
10.1. A hospice shall designate a person or persons responsible for the delivery and supervision of nutritional counseling, spiritual counseling and bereavement services.
10.2. The hospice program shall provide for the delivery of nutritional counseling, spiritual counseling and bereavement services that reflect the patient’s and family’s needs and desires and is delivered based on the plan of care.
10.3. Spiritual counseling may be provided through a working arrangement with individual clergy, clergy associations and other religious programs in the community or by clergy employed by the hospice.
10.3.1. The hospice shall maintain documentation of a patient’s or family’s request for clergy and the delivery of the services.
10.4. Bereavement services shall be provided by a qualified person or persons for a minimum of 12 months after the patient’s death, as requested. Refusal of bereavement services by the family must be documented.
10.4.1. A bereavement assessment of survivor risk factors shall be completed after a patient's admission to hospice and updated at the patient’s death.
10.4.2. The bereavement care plan shall be established for those survivors requesting bereavement care within six weeks after a patient's death.
10.4.3. The bereavement care plan shall contain information about who shall receive bereavement services, how often services are to be provided and what services will be offered.
10.4.3.a. Bereavement services may also extend to residents and employees of a skilled nursing facility, nursing facility, intermediate care facility for the mentally retarded or other facility identified in the bereavement plan of care.
10.4.4. The bereavement care plan shall be updated as needed.
10.4.5. If the hospice discharges survivors from bereavement services before the twelve (12) months expire, the hospice shall justify and document the discharge.
10.5. Nutritional counseling shall be performed by a qualified individual to address and assure the dietary needs of the patient are met.
W. Va. Code R. § 71-14-11 Pharmaceutical Services
11.1. All drugs and biologicals shall be administered in accordance with standards of practice by:
11.1.1. Appropriately licensed employees of a hospice; or
11.1.2. The patient and his or her family who have been properly educated on administration of the medications by a licensed employee of the hospice.
11.2. The hospice shall formulate written policies and procedures relative to medications and biologicals in accordance with accepted standards of practice.
11.3. The hospice shall formulate written policies and procedures for the control and accountability of all drugs and biologicals to prevent their unauthorized use or distribution.
11.4. The hospice shall formulate written policies and procedures for the use of emergency medication kits left in the patient’s home for emergency use.
11.5. If the hospice uses emergency kits in the patient’s home, then the following minimum requirements shall be met:
11.5.1. A licensed physician shall order all medications included in the medication kit;
11.5.2. The emergency medication kit shall include a list of the medications with information on each drug included in the emergency medication kit;
11.5.3. The emergency medication kit shall contain only medications needed for palliative care;
11.5.4. A licensed nurse shall assess the emergency medication kit at least weekly, or at the next scheduled visit if not weekly, to ensure unauthorized use has not occurred; and
11.5.5. Documentation of all information regarding the emergency kit shall be kept in the patient’s clinical record.
W. Va. Code R. § 71-14-12 Inpatient Facility Services
12.1. General Requirements.
12.1.1. If a hospice administers an inpatient facility for acute symptom management, respite care or residential care, the provisions of this section apply.
12.1.2. An inpatient facility shall have a full-time administrator. The administrator shall designate an individual who shall act in his or her absence as needed.
12.1.3. An inpatient facility shall have a full or part-time physician to meet the needs of the patient.
12.1.3.a. A physician, who can be the medical director for the hospice, or designee shall be available on call at all times.
12.1.4. An inpatient facility shall make reasonable efforts to safeguard personal property and promptly investigate complaints of any loss. At the time of admission, the inpatient facility shall prepare a record of all clothing, personal possessions and money brought by the patient to the inpatient facility. The inpatient facility shall update the record as additional personal property is brought to the inpatient facility.
12.1.5. If an inpatient facility keeps patient funds, the funds shall be kept in an account separate from the inpatient facility funds. Patient funds shall not be used by the inpatient facility.
12.1.6. An inpatient facility shall have a policy to admit only patients who:
12.1.6.a. Have been diagnosed as terminally ill; and
12.1.6.b. Have personally or through a legal representative, in writing, given informed consent to receive hospice care.
12.1.7. Inpatient facility admissions in excess of the licensed bed capacity are prohibited except when the Director approves an emergency admission.
12.1.8. If a patient is transferred from in-home hospice care to the inpatient facility, then the following shall occur:
12.1.8.a. The home hospice staff shall contact the inpatient facility with a report including the services to be provided;
12.1.8.b. The home hospice care shall provide a copy of the interdisciplinary team care plan within 24 hours to the inpatient facility;
12.1.8.c. The home hospice care shall provide significant information to the inpatient facility to ensure continuity of care.
12.2. Nursing requirements.
12.2.1. An inpatient facility shall provide nursing care and services by or under the direct supervision of a Registered Nurse at all times.
12.2.2. An inpatient facility shall have a Registered Nurse on site at all times.
12.2.3. Nursing care and services shall be provided in accordance with the plan of care developed by the interdisciplinary team and as ordered by the physician.
12.2.4. Nursing care, staffing and services shall meet the needs of the patients.
12.2.5. A Registered Nurse shall assign the nursing care of each patient to other nursing personnel in accordance with the patient's needs and the specialized qualifications and competence of the nursing staff available.
12.2.6. Nursing care and services shall be provided in accordance with recognized standards of practice.
12.3. Pharmaceutical Services
12.3.1. The pharmaceutical services shall be under the direction of a licensed pharmacist.
12.3.2. There shall be a medicine room or drug preparation area of sufficient size for the orderly storage of drugs, both liquid and solid dosage forms, and for the preparation of medications for patient administration within the unit. In the event that a drug cart is used for storage and administration of drugs, the room shall be of sufficient size for storage of the cart without crowding.
12.3.3. An inpatient facility shall develop policies to identify, monitor and track medication errors and adverse drug reactions. The results shall be reported to the quality assurance program.
12.4. Laboratory and Radiological Services.
12.4.1. An inpatient facility shall maintain or have available, whether directly or through a written agreement, adequate laboratory and radiological services available to meet the needs of the patients.
12.5. Food and Dietetic Services.
12.5.1. An inpatient facility shall comply with W. Va. Code R. §§64-17-1, et seq., Food Establishments.
12.5.2. An inpatient facility shall designate a person, either directly or by contractual agreement, to serve as the food and dietetic services manager with responsibility for the daily management of the dietary services.
12.5.3. An inpatient facility that does not provide the services of a certified dietary manager shall, at a minimum, train all employees through the county health department’s food managers training course or a comparable course.
12.5.4. An inpatient facility shall designate a qualified dietitian, either directly or through a contractual agreement, who is responsible for the development and implementation of a nutrition care program to meet the needs of the patients. This dietician shall be available as needed to assist in nutritional assessment, menu planning, educating staff and evaluating safe food production.
12.5.5. Menus shall meet the needs of the patients. Special diets shall be prepared and served as ordered.
12.5.6. A current therapeutic diet manual approved by the dietitian and medical director shall be readily available to all medical, nursing and food service personnel.
12.5.7. Families shall be allowed to store home cooked food for a patient. This storage shall be readily available. Food brought from home shall not be co-mingled with the food prepared by the hospice for other patients.
12.6. Restraints.
12.6.1. A patient has the right to be free from a restraint of any form imposed as a mean of coercion, discipline, convenience or retaliation by staff.
12.6.2. The use of a restraint shall be:
12.6.2.a. Selected only when less restrictive measures are found ineffective to protect the patient or other persons from harm;
12.6.2.b. Only used as ordered by the hospice physician or attending physician;
12.6.2.c. Implemented in the least restrictive manner possible not to interfere with the palliative care being provided;
12.6.2.d. In accordance with safe and appropriate restraining practices; and
12.6.2.e. Ended at the earliest possible time.
12.6.3. The hospice shall have policies and procedures for the use of restraints.
12.6.4. All staff shall receive training in proper and safe restraining techniques and training in de-escalation of behaviors at least annually.
12.6.5. The patient shall be monitored and evaluated to ensure the safety of the patient.
W. Va. Code R. § 71-14-13 Inpatient Physical Facilities, Equipment, and Related Items
13.1. The provisions of this section apply to all hospice inpatient facilities. An inpatient facility licensed prior to the effective date of this rule shall be maintained in accordance with applicable standards of practice as referenced in “Sections 8 and 13” in the 2001 edition of The Guidelines for Design and Construction of Hospital and Health Care Facilities as recognized by the American Institute of Architects Academy of Architecture for Health.
13.2. The following documents shall be adopted as construction, equipment, physical facility, and related procedural standards for all inpatient facilities, new construction and any additions, alterations, renovations, or conversions of existing buildings:
13.2.1. “Section 4.2: of the 2006 edition of The Guidelines for Design and Construction of Hospital and Health Care Facilities as recognized by the American Institute of Architects Academy of Architecture for Health with assistance from the United States Department of Health and Human Resources shall be used as planning standards;
13.2.2. The State Building Code, which is the 2003 Edition of the International Building Code as adopted by the State Fire Commission, State Building Code, W. Va. Code R. §§87-4-1, et seq.;
13.2.3. Provisions applicable to nursing homes, electrical standards, medical gas standards and patient care equipment standards and health care emergency management standards as defined in the applicable subsections in the 2005 Edition of NFPA 99, Standard for Health Care Facilities;
13.2.4. The guidelines set forth in the Americans With Disabilities Act, 28 CFR Part 36; and
13.2.5. The current State Fire Code as adopted by the State Fire Commission, State Fire Code, W. Va. Code R. §§87-1-1, et seq..
13.3. An inpatient facility shall comply with applicable rules of the West Virginia State Fire Commission.
13.4. An inpatient facility shall ensure that patient rooms are designed and equipped for nursing care, as well as the dignity, comfort, and privacy of patients.
13.4.1. Maximum room occupancy is one patient unless justified by the hospice. In no case shall a patient room exceed two occupants.
13.4.2. All patient rooms shall provide a minimum of 120 square feet of clear floor space per patient excluding toilet room space. Each patient room shall have a private toilet and bathing space.
13.4.3. A minimum of 50 percent of the patient rooms shall meet the guidelines set forth in the Americans With Disabilities Act, 28 CFR Part 36.
13.5. The interior and exterior of the inpatient facility shall be maintained to provide a clean, safe, sanitary environment free of hazards for patients, staff, and visitors.
13.6. An inpatient facility shall have an emergency operations plan in effect for managing the consequences of power failures, natural disasters, and other emergencies that would affect a hospice’s ability to provide care or interrupt normal operations.
13.6.1. All staff shall be familiar with the written emergency operations plan developed in accordance with the standards identified in NFPA 99.
13.6.2. New employees shall be trained in emergency operations upon hire and annually thereafter in accordance with the requirements identified in NFPA 99.
13.6.3. The administrator shall review the emergency operations plan on an annual basis, which shall be verified by his or her signature and the date.
13.6.4. There shall be at least one rehearsal of the emergency operations plan on a semiannual basis.
13.7. An inpatient facility shall develop procedures for managing the control, reliability, and quality of the physical facility. This shall include the light, temperature, humidity, ventilation and air exchanges, and air quality throughout the hospice.
13.8. An inpatient facility shall have adequate drainage, electricity, telephone, sanitation, water, and other necessary facilities available on or near the site.
13.9. An inpatient facility shall meet local building codes and zoning restrictions. Where local codes or regulations permit lower standards than required by this rule, the standards contained in this rule take precedence.
13.10. Site conditions shall comply with the relevant sections of the 2006 Edition of The Guidelines for Design and Construction of Hospital and Healthcare Facilities as recognized by the American Institute of Architects Academy of Architecture for Health.
13.11. An inpatient facility shall request, in writing, an inspection of a proposed inpatient facility site and obtain approval for construction from the Director before beginning construction.
13.12. For new construction, renovations and alterations, an inpatient facility shall submit to the Director for review and approval, complete construction drawings and specifications for the inpatient facility construction project which alters a floor plan, impacts life safety or requires approval under W. Va. Code §§16-2D-1, et seq., prior to beginning work on the project. An architect or engineer registered to practice in West Virginia shall prepare and sign and seal the drawings and specifications including architectural, life safety, structural, mechanical, and electrical drawings and specifications.
13.12.1. Each new inpatient facility constructed after the effective date of this rule shall provide a private room for family members to place telephone calls.
13.12.2. Prior to starting any renovations, an inpatient facility shall complete an infection control and safety risk assessment and shall develop a plan to control exposure of patients, employees and the public. This plan shall be implemented prior to and during construction phases.
W. Va. Code R. § 71-14-14 Penalties
14.1. Director’s Authority.
14.1.1. The Director may suspend or revoke a hospice license according to the provisions of W. Va. Code §§16B-8-1, et seq., if he or she finds upon inspection that there has been a substantial failure to comply with the provisions of this rule or with the laws of this state or with any other order or final decision.
14.1.2. The Director shall refuse to grant a license if he or she finds that the applicant has failed to be in substantial compliance with the provisions of this rule or the laws of this state or with any other order or final decision.
14.1.3. When the Director, in consultation with the Inspector General, takes action pursuant to the suspension or revocation of a license issued under this rule, he or she shall comply with the requirements and procedures set forth in W. Va. Code §§16B-8-1, et seq.,
14.2. The Director, in consultation with the Inspector General, shall assess a civil money penalty not to exceed $50 for each violation of operation of a hospice without first obtaining a license or violation of any provisions of the Code or any rule lawfully promulgated under the Code.
14.2.1. Each day of operation of a hospice without first obtaining a license or violation of any provisions of the Code or any rule lawfully promulgated under the Code constitutes a separate violation.
14.3. The Inspector General may institute an action to restrain or prevent establishment or operation of any hospice, because of violation of any provision of the code or rules, in the circuit court of the county where the hospice is located or the Circuit Court of Kanawha County.
W. Va. Code R. § 71-14-15 Administrative Due Process
15.1. Before revoking or suspending a hospice license, the Director, in consultation with the Inspector General, shall serve the licensee with written notice of the grounds of the complaint, and the procedure for challenging the allegation.
15.1.1. The notice shall be sent by certified mail to the licensee at the address where the hospice is located.
15.2. All formal hearings shall be governed by W. Va. Code §§29A-5-1, et seq., and “Rules of Procedure for Contested Case Hearings and Declaratory Rulings” W. Va. Code R. §§64-1-1, et seq., and “Rules for Hearings Under the Administrative Procedures Act” W. Va. Code §§69-1-1, et seq. These rules of procedure are incorporated in this rule by reference.
15.3. If the license is revoked as a result of these proceedings, the Director may consider a new application for a license if the conditions upon which the revocation is based have been corrected and adequate proof of the correction is furnished.
15.3.1. The Director shall issue a new license upon inspection of the hospice if all provisions of the article and the rules promulgated have been satisfied.
15.4. Any applicant or licensee aggrieved by the decision of the Board of Review may, within 30 days after receiving the final administrative order, appeal to the West Virginia Intermediate Court of Appeals for judicial review of that decision as promulgated in W. Va. Code §29A-5-4.
15.5. The court may affirm, modify or reverse the decision of the Board of Review and either party may appeal the court’s decision to the Supreme Court of Appeals of West Virginia as promulgated in W. Va. Code §29A-5-4.
Series 15 Nursing Home Licensure
W. Va. Code R. § 71-15-1 General
1.1. Scope. -- It is the purpose of this rule to implement state and federal law governing the licensing, operation, and standard of care in nursing homes located in the State of West Virginia. Compliance with this rule will help each resident attain or maintain the highest practicable physical, mental and psychosocial well-being in accordance with a comprehensive assessment and plan of care and prevailing standards of care, and will promote a standard of care that assures that the ability of each resident to perform activities of daily living does not diminish unless the resident’s ability is diminished solely as a result of a change in the resident’s clinical condition.
1.2. Authority. -- W. Va. Code §16B-4-5.
1.3. Filing Date. -- April 8, 2026.
1.4. Effective Date. -- May 1, 2026.
1.5. Sunset Provision. -- This rule will terminate and have no further force or effect upon August 1, 2031.
1.6. Application. This rule applies to nursing home residents and their legal representatives as well as every individual and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association, or political subdivision of the state that operates or applies to operate a nursing home as defined in this rule and W. Va. Code §§16B-4-1, et seq.
1.7. Variances From This Rule.
1.7.1. The director, in consultation with the Inspector General, may grant a variance from any provision of this rule if it determines that:
1.7.1.a. Strict compliance would impose a substantial hardship on the licensee;
1.7.1.b. The licensee will otherwise meet the goal of the rule; and
1.7.1.c. A variance will not result in less protection of the health, safety and welfare of the residents.
1.7.2. A variance shall not be granted from a provision pertaining to residents’ rights.
1.7.2.a. Separate federal variance procedures may apply for provisions of this rule and are contained in the federal nursing home regulations.
1.7.2.b. Requests for variances from West Virginia fire safety and building construction requirements shall be addressed to the appropriate authorities.
1.7.3. A variance shall not be granted from a provision pertaining to a requirement in W. Va. Code §§16B-4-1, et seq.
1.8. Enforcement. This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of W. Va. Code §§16B-4-1, et seq., and the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-15-2 Definitions
2.1. Definitions incorporated by reference. Those terms defined in W. Va. Code §§16B-4-1, et seq., are incorporated herein by reference.
2.2. Abuse. The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychological well-being. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain, or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology. As used in this definition, willful means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.
2.3. Administrator. A person licensed in the state of West Virginia as a nursing home administrator who is responsible for the day to day operation of the nursing home.
2.4. Advance Directive. Written instruction of an individual, such as a living will, a durable power of attorney for health care or general durable power of attorney, recognized under state law and relating to the provision of health care when the individual is unable to direct his or her own health care.
2.5. Annual Inspection. For the purpose of this rule, annual inspection is defined as occurring during a time frame of nine to 15 months from the last annual inspection.
2.6. Applicant. The person who submits an application for a license or renewal of a license to operate a nursing home.
2.7. Bed Capacity. The maximum number of beds the nursing home is currently licensed to offer for resident occupancy.
2.8. Capacity to make health care decisions. When a person is able to comprehend and retain information which is material to a decision, especially as to the likely consequences; the person is able to use the information and weigh it in the balance as part of the process of arriving at a decision and is able to communicate the decision in an unambiguous manner.
2.9. Care Plan. A document, based on the comprehensive assessment and prepared by the interdisciplinary team in conjunction with the resident, that identifies measurable objectives for the highest level of functioning the resident may be expected to attain or maintain.
2.10. Causal Factors. Any stimulus that affects the behavior of a resident either positively or negatively.
2.11. Change of Ownership. Any transaction that results in change of control over the capital assets of a nursing home including, but not limited to, a conditional sale, a sale, a lease, or a transfer of title or controlling stock.
2.12. Chemical Restraint. Any drug that is used for discipline or staff convenience and not required to treat medical symptoms. As used in this definition, convenience means the result of any action that has the effect of altering a resident’s behavior such that the resident requires a lesser amount of effort or care and is not in the resident’s best interest. As used in this definition, discipline means any action taken by facility staff for the purpose of punishing or penalizing residents.
2.13. Competent Person. A person who has not been adjudicated incompetent by a court of law.
2.14. Discharge. Moving the resident to a non-institutional setting when the releasing facility ceases to be responsible for the resident’s care.
2.15. Employee. Any person who performs personal services for the nursing home in exchange for monetary compensation where such personal services, including the results to be accomplished as well as the details and the means by which the results are accomplished, are controlled and directed by the nursing home, where monetary compensation is affected through the nursing home’s payroll system.
2.16. Enabler. Any device that allows the resident to accomplish tasks that otherwise he or she could not accomplish and maintains and improves a resident’s ability to function.
2.17. Experimental Research. Development and testing of clinical treatments, such as an investigational drug or therapy, that involve treatment groups, control groups, or both. For example, a clinical trial of an investigational drug is experimental research.
2.18. Exploitation. Taking advantage of a resident for personal gain through the use of manipulation intimidation, threats, or coercion.
2.19. Family Council. A group of persons, family members, or responsible parties of the residents, meeting as a group, having the right to express grievances in relation to the residents’ well-being in general, and to make recommendations concerning nursing home policies and procedures.
2.20. Governing Body. The person or group of persons with the ultimate responsibility and authority for the conduct of the nursing home.
2.21. Harm. Noncompliance with this rule that has negatively affected the resident so that the resident’s physical, mental, or psychosocial well-being has been compromised and is not transient in nature.
2.22. Interdisciplinary Team. A team consisting of at least a registered nurse and other professional disciplines as appropriate, including the resident’s physician, working together with the resident or the resident’s representative, if applicable, to attain or maintain the resident at his or her highest practicable level of physical, mental, and psychosocial well-being.
2.23. Independent Health Contractor. A licensed, certified, registered, or a combination of the foregoing health care provider who performs personal services for the nursing home in exchange for monetary compensation, where the nursing home has the right to specify the result to be accomplished by the work, but not the means and methods by which the result is accomplished.
2.24. Institutional Setting. Any health care facility.
2.25. Involuntary Seclusion. The separation of a resident from other residents or from his or her room or confinement to his or her room, with or without roommates, against the resident’s will, or the will of the resident’s representative.
2.26. Legal Representative. A person appointed by an individual or by a duly authorized agency or court, or otherwise authorized by law to exercise some degree of control over a resident’s affairs. Various types of legal representatives may not necessarily have the lawful authority to act on behalf of the resident in all matters that require action by the legal representative. For example, a conservator has responsibility for financial affairs, but not personal affairs such as medical care. Legal representatives include:
2.26.1. A conservator, temporary conservator, or limited conservator appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code §§44A-1-1, et seq., within the limits set by the appointing order;
2.26.2. A guardian, temporary guardian, or limited guardian appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code §§44A-1-1, et seq., within the limits set by the appointing order;
2.26.3. A person appointed as committee or guardian prior to June 9, 1994, within limits set by the appointing order and W. Va. Code §§44A-1-1, et seq.;
2.26.4. A person having medical power of attorney pursuant to the West Virginia Health Care Decisions Act, W. Va. Code §§16-30-1, et seq., within the limits set by the law and the appointment;
2.26.5. A representative payee under the U.S. Social Security Act, 42 USC §§ 301, et seq., within the limits of the payee’s legal authority;
2.26.6. A surrogate decision-maker appointed pursuant to the West Virginia Health Care Decisions Act, W. Va. Code §§16-30-1, et seq., within the limits set by the appointment;
2.26.7. A person having a power of attorney pursuant to W. Va. Code §§39B-1-101, et seq.;
2.26.8. A person identified pursuant to the W. Va. Code §16-3C-4, to grant consent for HIV related testing and for the authorization of the release of the results;
2.26.9. A parent or guardian of a minor; or
2.26.10. A person lawfully appointed in a similar or like relationship of responsibility for a resident under the laws of this State, or another state or legal jurisdiction, within the limits of the applicable statute and appointing authority.
2.27. License. The document issued by the director that is the licensee’s authority to receive residents and perform services included within the scope of this rule.
2.28. Licensed or Registered.
2.28.1. Person. Licensed or registered by the proper authority to follow a profession in the State of West Virginia.
2.28.2. Nursing home. A nursing home licensed by the Office of Health Facility Licensure and Certification.
2.29. Licensee. A person, persons, or entity holding a license to operate a nursing home, who is responsible for compliance with all rules and minimum standards.
2.30. Medicaid. The medical assistance program established pursuant to Title XIX of the Social Security Act.
2.31. Medicare. The medical insurance program established pursuant to Title XVIII of the Social Security Act.
2.32. Mental Abuse. Is a form of abuse that includes, but is not limited to, the following:
2.32.1. Harassing a resident;
2.32.2. Mocking, insulting, or ridiculing;
2.32.3. Yelling or hovering over a resident, with the intent to intimidate;
2.32.4. Threatening a resident, including, but not limited to, depriving a resident of care or withholding a resident from contact with family and friends; and
2.32.5. Isolating a resident from social interaction or activities.
2.33. Misappropriation of Resident Property. The deliberate misplacement; exploitation; or wrongful, temporary, or permanent use of a resident’s belongings or money without the resident’s consent.
2.34. Mistreatment. The inappropriate treatment or exploitation of a resident.
2.35. Neglect. The failure of the facility, its employees, or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.
2.36. Next of Kin. In descending order of priority;
2.36.1. The resident’s spouse;
2.36.2. The resident’s adult children;
2.36.3. The resident’s parents;
2.36.4. The resident’s adult siblings;
2.36.5. The resident’s adult grandchildren;
2.36.6. The resident’s close friends; and
2.36.7. Any other person or entity, including guardians, public officials, and private corporations and other persons or entities which the department may from time to time designate in rules promulgated pursuant to W. Va. Code §§29A-3-1, et seq.
2.37. Noncompliance. Any deficient practice or nonconformity that causes a nursing home to not be in substantial compliance with this rule.
2.38. Nourishing Snack. Two or more food items from the basic food groups plus a beverage of milk, juice or the resident’s preference, and as specified in the most current version of the Centers for Medicare and Medicaid Services, State Operations Manual, Appendix PP.
2.39. Nursing Personnel. The director of nursing, the charge nurse, and all employees under the direct supervision of the director of nursing or charge nurse who attend to resident-oriented nursing functions, including registered professional nurses, licensed practical nurses, and nursing aides, but excluding employees engaged in administration, dietetics, social services, activities staff, housekeeping, laundry, and maintenance.
2.40. Ombudsman. Any person or organization designated by the State Long-Term Care Ombudsman as part of the West Virginia Long-Term Care Ombudsman Program.
2.41. Physical Restraint. Any manual method, physical, or mechanical device, equipment, or material that meets all of the following criteria:
2.41.1. Is attached or adjacent to the resident’s body;
2.41.2. Cannot be removed easily by the resident; and
2.41.3. Restricts the resident’s freedom of movement or normal access to his or her body.
2.41.4. As used in this definition, removed easily means the manual method, physical, or mechanical device, equipment, or material, can be removed intentionally by the resident in the same manner as it was applied by the staff.
2.42. Plan of Care. The overall profile of services and expected outcomes of care that may include those plans to meet the person’s needs after discharge to the community. This includes all care and services outlined in the resident’s medical record.
2.43. Poor Performer. A nursing home which has repeat deficiencies that resulted in harm or greater whereby the nursing home cannot avoid an enforcement action by correction of the deficiency.
2.44. Premises. A tract of land, together with all buildings, equipment, fixtures, and facilities erected, constructed, or situated on the land, and all rights, powers, easements, and rights-of-way, and all interests in property, real, personal, or mixed, now owned or hereafter acquired by a licensed person and appurtenant to or used in connection with the nursing home.
2.45. PRN as it pertains to mediation administration. A type of prescriber’s order that authorizes a nurse or other healthcare professional to give a specific medication to a patient only when certain symptoms or conditions occur, rather than on a fixed, routine schedule.
2.46. PRN as it pertains to staff. Staff including, but not limited to, nurses, therapists, and nurse aides that do not have a fixed or guaranteed set of hours or a regular schedule such full-time or part-time.
2.47. Protection and Advocacy Network. The system established to protect and advocate the rights of persons with developmental disabilities specified in the Developmental Disabilities Assistance and Bill of Rights Act, and the protection and advocacy system established under the Protection and Advocacy for Mentally Ill Individuals Act.
2.48. Qualified. The capacity of a person who is licensed, certified, or registered to perform a duty or a task in accordance with applicable State law and other accrediting bodies.
2.49. Regulatory Deficiency. A set of directly related regulatory requirements.
2.50. Repeat Deficiency. A deficiency that meets all of the following conditions: is cited on the current inspection; was cited on the previous inspection or any intervening inspection between the current inspection and the previous inspection; has had a plan of correction submitted for the previous inspection or any intervening inspection that was accepted by the director; and is cited based on the same regulatory grouping.
2.51. Resident Council. A group of residents having the right to meet as a group and to express grievances in relation to the residents’ well-being in general and to make recommendations concerning nursing home policies and procedures.
2.52. Resident Resource Amount. The portion of a resident’s income determined by the West Virginia Department of Human Services which a resident who receives Medicaid long-term care assistance contributes to the cost of care every month.
2.53. Routine Dental Service. A service consisting of an annual inspection of the oral cavity for signs of disease, diagnosis of dental disease, dental radiographs as needed, dental cleaning, fillings, minor dental plate adjustments, smoothing of broken teeth, and limited prosthodontic procedures such as impressions of dentures and fitting of dentures.
2.54. Sexual Abuse. Non-consensual sexual contact of any type with a resident. Sexual abuse includes, but is not limited to:
2.54.1. Unwanted intimate touching of any kind;
2.54.2. All types of sexual assault or battery;
2.54.3. Forced observation of a sexual act of any kind; and
2.54.4. Taking sexually explicit photographs, audio or video recordings, or both of a resident or residents and maintaining, distributing, or both the same, including posting to social media. This includes, but is not limited to, nudity, fondling, intercourse, or any combination thereof involving a resident or residents.
2.55. Staff. Any person or persons who perform personal services for the nursing home in exchange for monetary compensation where such personal services, including the results to be accomplished as well as the details and the means by which the results are accomplished, are controlled and directed by the nursing home, regardless of whether monetary compensation is effected through the nursing home’s payroll system or the nursing home’s accounts payable system.
2.56. Standard Quality of Care. Substantial compliance with this rule.
2.57. State Board of Review. A board within the Office of Inspector General designated by state law through which a resident may appeal a discharge or transfer from a nursing home.
2.58. Transfer. Moving the resident from the nursing home to another legally responsible institutional setting.
2.59. Treatment. Care provided for the purposes of maintaining and or restoring health, improving functional levels, or relieving symptoms.
2.60. Verbal Abuse. A form of abuse, including, but not limited to, the use of oral, written, or gestured communication or sounds, to residents within hearing distance, regardless of age, ability to comprehend, or disability. Verbal abuse may be considered a form of mental abuse.
W. Va. Code R. § 71-15-3 State Administrative Procedures
3.1. General Licensure Provisions.
3.1.1. No person may establish, operate, maintain, offer, or advertise a nursing home as defined in this rule within the state of West Virginia unless that person obtains a valid license.
3.1.2. A separate license is required for nursing homes maintained or operated on separate premises even though maintained or operated under the same ownership or management.
3.1.3. A licensee shall notify the director if there is a special unit within the same physical environment of the nursing home, or on the same campus or premise which has a different advertised name, including but not limited to, signage outside of the building.
3.1.3.a. A separate license is unnecessary for this special unit, and the separately named unit shall still be treated as part of the overall nursing home.
3.1.3.b. The director may require the licensee to provide additional information and designate a subclassification under the primary license for the separately named unit.
3.1.4. Separate buildings on the same premises, operated under the same ownership and management, are one nursing home unless the director determines otherwise.
3.1.5. A license is valid only for the premises and persons named in the application.
3.1.6. A license is not transferable or assignable and shall be surrendered on demand to the director.
3.1.7. If the ownership of a nursing home with a valid unexpired license changes, the new owner shall apply for a new license.
3.1.8. The application for a license by the new owner has the effect of a valid license for three months from the date the application is received by the director.
3.1.9. The nursing home shall obtain approval from the director prior to changing the name of the nursing home.
3.1.10. An approved name change is reflected in a newly issued license at a charge of $50.
3.1.11. The words “clinic,” “hospital,” “sanitarium,” or any other word that suggests a type of institution other than the proposed or existing nursing home shall not appear in the name.
3.1.12. A license shall state:
3.1.12.a. The name of the nursing home to which it applies;
3.1.12.b. The name of the applicant who is the licensee;
3.1.12.c. The maximum bed capacity for which it is granted;
3.1.12.d. The date of issuance; and
3.1.12.e. The expiration date.
3.1.13. The name on the license shall be that used in the application which specifically identifies the nursing home.
3.2. Exceptions.
3.2.1. Nothing contained in this rule applies to:
3.2.1.a. A hospital as defined in W. Va. Code §§16B-3-1, et seq.;
3.2.1.b. State hospital as defined in W. Va. Code §27-1-6;
3.2.1.c. A federally operated institution;
3.2.1.d. Institutions operated for the care and treatment of alcoholic patients;
3.2.1.e. Offices of physicians;
3.2.1.f. Hotels;
3.2.1.g. Assisted Living Residences, as defined under W. Va. Code §§16B-5-1, et seq.;
3.2.1.h. Boarding homes or similar places that furnish to their guests only room and board;
3.2.1.i. Extended care facilities operated in conjunction with a hospital;
3.2.1.j. Facilities, including intermediate care facilities for individuals with intellectual disabilities;
3.2.1.k. Residential Care Communities as defined under W. Va. Code §§16B-9-1, et seq.; and
3.2.1.l. Homes or asylums operated by fraternal orders pursuant to W. Va. Code §§35-3-1, et seq.
3.2.2. 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, does not constitute a nursing home within the meaning of this rule.
3.2.3. Nursing homes federally certified by the Centers for Medicare and Medicaid Services under 42 Code of Federal Regulations, Part 483, Subpart B are exempt from provisions of this rule addressed in applicable federal regulations, unless such provisions are part of an express state requirement intended to differ from the federal regulation.
3.2.3.a. The Office of Health Facility Licensure and Certification will develop a list of the non-exempted provisions of this rule with the assistance of the Nursing Home Advisory Council.
3.2.3.b. The Office of Health Facility Licensure and Certification will revise the non-exemption list when the Centers for Medicare and Medicaid Services makes modifications or amendments to 42 Code of Federal Regulations, Part 483, Subpart B.
3.3. Initial License.
3.3.1. An applicant shall submit an application to the director, on a form prescribed by the director, containing information sufficient to demonstrate that the nursing home is in compliance with the standards for nursing homes established in W. Va. Code §§16B-4-1, et seq., and this rule.
3.3.2. The application shall be filed not less than 30 days and not more than 90 days prior to the date proposed for commencement of operation.
3.4. Renewal License.
3.4.1. An applicant for a renewal license shall submit an application to the director on the form prescribed by the director.
3.4.2. A completed application for renewal of a license shall be submitted not less than 30 days and not more than 90 days prior to the expiration date of the current license.
3.4.3. The fee for renewal of a license, as determined by the director pursuant to W. Va. Code §16B-4-6(e) and §§16-4-1, et seq., shall accompany the license renewal application.
3.4.4. The director shall renew an original license when the following conditions are met:
3.4.4.a. The director finds the nursing home in substantial compliance with the provisions of W. Va. Code §§16-4-1, et seq., and with this rule;
3.4.4.b. The licensee applied for a renewal within the time period specified in this subsection; and
3.4.4.c. The licensee submitted the correct renewal fee with the application.
3.4.5. A renewal license is valid for one year from the date of issuance.
3.5. Provisional License.
3.5.1. If the director finds that a nursing home applying for renewal of a license is not in substantial compliance with the requirements of this rule and the provisions of W. Va. Code §§16B-4-1, et seq., the director may, at his or her discretion, issue a provisional license.
3.5.2. A provisional license may be issued only when the director makes the following findings:
3.5.2.a. That the care given in the nursing home does not pose a substantial threat to the health and safety of residents; and
3.5.2.b. That the nursing home has demonstrated improvement and potential for substantial compliance within the term of the license for which renewal is requested.
3.5.3. A provisional license shall not be issued for a period greater than six months.
3.5.4. No extensions or renewals shall be granted on provisional licenses.
3.6. Inspections of Licensed and Unlicensed Facilities.
3.6.1. Before licensing a nursing home, the director shall inspect the nursing home.
3.6.2. The director shall conduct at least one unannounced inspection annually, to determine compliance with the provisions of W. Va. Code §§16B-4-1, et seq., and this rule.
3.6.3. In accordance with W. Va. Code §§16B-4-1, et seq., the director or designee has the right to enter the premises of a nursing home that the director has reason to believe is being operated or maintained as a nursing home without a license.
3.6.4. If the owner or person in charge of an unlicensed nursing home refuses entry pursuant to this subsection, the director, in consultation with the Inspector General, shall apply to the circuit court of the county in which the nursing home is located or in the Circuit Court of Kanawha County for a warrant authorizing inspection.
3.6.5. If the director finds, on the basis of the inspection, that the nursing home is operating as a nursing home without a license, the nursing home shall apply for a license within 10 days in accordance with the provisions of this rule or shall reduce the number of residents to three or fewer.
3.6.6. A nursing home which fails to apply for a license is subject to the penalties established by the provisions of this rule.
3.6.7. The director shall file an inspection report according to this rule and shall keep the report on file for five years.
3.6.8. An inspection report shall list each deficiency in the nursing home’s compliance with statutes and rules, indicating for each deficiency specifically which provision has not been met.
3.6.9. The director shall send a copy of the report of an inspection to the nursing home.
3.7. License; Posting; Licensed Capacity.
3.7.1. The owner shall post the license in a conspicuous place on the licensed premises.
3.7.2. The Office of Health Facility Licensure and Certification on behalf of the State of West Virginia shall maintain ownership of each license certificate issued to a licensee; upon the suspension or revocation of the license, or upon discontinuing operation of the home by voluntary action of the licensee, the owner shall return each license certificate to the director immediately.
3.7.3. The number of residents in a nursing home may not at any time exceed the licensed capacity of the home as shown on the license.
3.7.4. Emergency. A request for temporary authority to exceed the licensed capacity may be made to the director in the event of an emergency.
3.8. Change in Status Necessitating Discharge or Transfer of Residents.
3.8.1. Whenever a licensee plans to discontinue all or part of its operation or change its ownership or location, and the change in status would necessitate the discharge or transfer of residents, the administrator shall notify the director at least 90 days prior to the proposed date of the change in status.
3.8.2. For licensees planning a change in status as described in this rule:
3.8.2.a. This rule remains fully applicable until all residents have been discharged or transferred.
3.8.2.b. At least 60 days prior to the date of the planned change in status, the administrator shall provide the director with a written transfer plan, subject to approval by the director. This plan shall include the following:
3.8.2.b.1. Documentation that adequate staff and resident care will be provided;
3.8.2.b.2. The licensee’s arrangements to make an orderly transfer of residents and to minimize the health risks; and
3.8.2.b.3. The placement action proposed to be taken for each resident.
3.8.2.c. The administrator, upon request, shall provide the licensing agency with any additional information related to the transfer plan as well as follow-up reports regarding specific placement action.
3.8.2.d. The licensee shall not admit new residents after the date of the written notice required in this Section.
3.9. Nursing Home Licensing Advisory Council.
3.9.1. The director shall establish a licensing advisory council composed of licensed nursing home administrators, representatives of appropriate government agencies and consumers.
3.9.2. The composition of the council shall be determined by the director and be comprised of no less than 10 members and no more than 15 members.
3.9.3. The purpose of the council is to make recommendations to the director about regulatory issues and improvement of nursing home services.
3.9.4. The council shall hold a meeting not less than semiannually, at least one of which shall be held in a public setting and receive input from the public.
3.10. Transfer Agreements.
3.10.1. The nursing home shall have in effect a transfer agreement with one or more hospitals approved for participation under the Medicare and Medicaid programs that reasonably assures:
3.10.2. Timely admission of a resident to the hospital when transfer is medically appropriate as determined by a physician; and
3.10.3. Medical and other information needed for care and treatment of residents is exchanged between the institutions.
3.11. Interpretive Guidelines. The director, in consultation with the Inspector General, may issue interpretive guidelines related to this rule and prior to the adoption and implementation of the guidelines, shall provide notice of a public comment period to all affected parties.
W. Va. Code R. § 71-15-4 Residents’ Rights
4.1. Nursing Home Policies and Procedures.
4.1.1. The governing body of a nursing home shall establish written policies and procedures regarding the rights and responsibilities of residents. The policies adopted shall be consistent with the provisions of this rule.
4.1.2. Through the administrator, the governing body is responsible for on-going development of and adherence to procedures implementing policies regarding the rights and responsibilities of residents.
4.1.3. A nursing home shall make its policies and procedures available upon request to:
4.1.3.a. Residents or potential residents; and
4.1.3.b. Legal representatives.
4.2. Duties of Staff.
4.2.1. All members of the nursing home staff shall ensure that every resident under their care is accorded all rights set forth in this rule.
4.2.2. The nursing home staff shall at least annually receive training in the proper implementation of residents’ rights policies under the provisions of this rule.
4.2.3. When the nursing home staff limits or restricts the rights of a resident for medical reasons, the staff will document the specific reasons for the limitation or restriction in the resident’s medical record, and the specific period of time the limitation or restriction will be in place. The resident or the resident’s legal representative shall be notified of the limitation or restriction.
4.3. Legal Representatives.
4.3.1. In the case of a resident who has been determined by a West Virginia court to meet the definition of a protected person in need of the assistance of a guardian, conservator or both under W. Va. §44A-1-4, or by a court of competent jurisdiction in a similar proceeding under the laws of another state, the rights of the resident are exercised by the person appointed to act on the resident’s behalf.
4.3.2. In the case of any other resident, any legal-surrogate designated in accordance with the State law may exercise the resident’s rights to the extent provided by state law.
4.3.3. The nursing home shall make every reasonable effort to communicate the rights and obligations established under this rule directly to the resident.
4.3.4. If the rights of a resident have devolved to another person, the nursing home shall maintain documentation of the determination of incapacity to make health care decisions or incompetence, in the resident’s medical record.
4.3.5. The nursing home shall maintain in the residents’ medical record verification of the authority of the legal representative and shall provide the legal representative with a general description of the scope of the legal representative’s decision-making authority, as developed and approved by the Office of the Health Facility Licensure and Certification.
4.3.6. After a resident has been determined to lack capacity to make health care decisions a nursing home shall reevaluate the resident’s capacity to make health care decisions at least annually.
4.3.7. If the resident regains his or her capacity to make health care decisions, the powers of the legal representative shall cease immediately.
4.3.8. An employee of a nursing home, or a person or his or her spouse having a financial interest in the nursing home, shall not serve as a resident’s legal representative unless the employee or person is related to the resident within the degree of consanguinity of second cousin or unless the nursing home has been named temporary legal representative payee.
4.4. Confidentiality and Access to Records and Information.
4.4.1. Confidential Treatment. The nursing home shall assure confidential treatment of each resident’s personal and medical records and may approve or refuse their release to any person outside the nursing home, except in the case of his or her transfer to another health care institution, as required by law, or for a third party payment contract.
4.4.2. Access to Records. Upon an oral or written request, the nursing home shall provide to each resident access to all of his or her records, including current clinical records, within 24 hours of the request. Records may only be available during normal business operating hours, excluding weekends and holidays.
4.4.3. The facility may charge a fee for labor, supplies, and postage for providing copies of the resident’s medical record in accordance with W. Va. Code §§16-29-1, et seq. The nursing home will provide the photocopied materials to the resident within two working days of the request.
4.4.4. A nursing home shall make the results of surveys and inspections, as well as plans of correction, available for examination in a place readily accessible to residents or legal representatives and shall post a notice of their availability. A nursing home may charge an amount not to exceed 25 cents per page for copies of reports requested by any person.
4.4.5. A nursing home shall adopt policies and procedures that will protect the confidentiality of the resident as it relates to use of the resident’s name and photographs.
4.5. Right for Information. A nursing home shall:
4.5.1. Inform a resident of his or her rights and responsibilities under this rule and all rules governing resident conduct, prior to or at the time of admission and within 30 days of any changes to the rules regarding residents’ rights, and the resident shall acknowledge receipt of this information in writing.
4.5.2. Prominently display a copy of the residents’ rights and responsibilities, the names, addresses, and telephone numbers of all associated State agencies including licensing agencies, and state and local ombudsmen programs.
4.5.3. Reasonably accommodate residents with special communication needs such as hearing impairments and a primary language other than English, to inform residents of their rights.
4.5.4. Inform a resident of the following:
4.5.4.a. The resident has the right to be informed of his or her medical condition. If a resident lacks capacity to make health care decisions, the appropriate legal representative shall also be informed.
4.5.4.b. The resident has the right to be informed of his or her care and treatment. If a resident lacks capacity to make health care decisions, the appropriate legal representative shall also be informed.
4.5.5. Resident Grievance. A resident has the right to voice grievances to the facility or other agency or entity that hears grievances without discrimination or reprisal and without fear of discrimination or reprisal.
4.5.6. Self-Administration of Drugs. A resident may self-administer drugs if the interdisciplinary team determines that self-administration is safe. The interdisciplinary team shall review the self-administration determination at least quarterly.
4.6. Refusal of Treatment and Experimental Research.
4.6.1. Refusal of Treatment. A resident has the right to refuse treatment and to refuse to participate in experimental research.
4.6.1.a. As provided under state law, a resident who has the capacity to make a health care decision and who either withholds consent to treatment or makes an explicit refusal of treatment, either directly or through an advance directive, shall not be treated against his or her wishes.
4.6.1.a.1. If the resident is unable to make a health care decision, a decision by the resident’s legal representative to forego treatment is, subject to state law, equally binding on the nursing home.
4.6.1.a.2. When a refusal of treatment occurs, the nursing home shall assess the reasons for the resident’s refusal, clarify and educate the resident, and in the case of incapacity to make health care decisions, the legal representative, as to the consequences of the refusal, and offer alternative treatments, and continue to provide all other services.
4.6.1.a.3. The nursing home shall maintain documentation in the resident’s medical record of the resident’s refusal and the actions taken.
4.6.1.b. Refusal of Experimental Research. The resident shall have the opportunity to refuse to participate in experimental research prior to the start of the research. The nursing home shall inform a resident being considered for participation in experimental research of the nature of the experiment and of the possible consequences for participation.
4.6.2. A nursing home shall not transfer or discharge a resident for refusing treatment unless criteria for transfer or discharge are met under the provisions of this rule.
4.7. Written Information. A nursing home shall provide to residents a written description of their legal rights which includes:
4.7.1. A description of the manner of protecting personal funds under the provisions of this rule;
4.7.2. A description of the financial obligation as explained to the resident prior to or at the time of admission, including charges for services available, charges not covered under the Medicaid Program, or charges not included in the nursing home’s basic rate;
4.7.3. A description of the requirements and procedures for Medicaid eligibility including information about the availability of asset assessments upon request at the county West Virginia Office of Human Services office;
4.7.4. A list of names, addresses, and telephone numbers of the director, the Medicaid fraud control unit, and all related state client advocacy groups, such as the ombudsmen program and the protection and advocacy network; and
4.7.5. A statement that the resident may file a complaint with the director concerning resident abuse, neglect, and misappropriation of resident property in the nursing home.
4.8. Advance Directives.
4.8.1. The resident has the right to execute an advance directive.
4.8.2. A nursing home shall maintain written policies and procedures regarding advance directives including:
4.8.2.a. Provisions to inform and provide written information to all adult residents concerning the right to accept or refuse medical or surgical treatment and, at the resident’s option, execute an advance directive; and
4.8.2.b. A written description of the nursing home’s policies implementing advance directives.
4.8.3. A nursing home shall only admit residents for which it has the capacity to administer care in accordance with the resident’s advance directives, but cannot require a resident to execute an advance directive as a condition of admission. The nursing home shall notify the resident or legal representative of its inability to honor a resident’s advance directive executed after admission to the nursing home and assist in finding appropriate alternative placement if he or she desires.
4.9. Right to Choose a Personal Physician and Pharmacy.
4.9.1. Upon admission, the nursing home shall provide the resident with the names of the physicians who have attending privileges at the nursing home. The resident has the right to choose a personal physician.
4.9.2. The resident has the right to request and receive a second opinion from a physician of the resident’s choice where significant alternatives for care or treatment exists or when the resident requests information concerning care or treatment alternatives. It is the resident’s responsibility to select his or her attending physician and consulting physicians. The attending physician must have privileges at the nursing home.
4.9.3. The nursing home shall provide written notice to the resident of the name, address, telephone number, and specialty of his or her attending physician at the time of admission and when any change in physician is made.
4.9.4. When a resident has no attending physician, it is appropriate for the facility to assist the resident in obtaining one in consultation with the resident and subject to the resident’s right to choose.
4.9.5. The resident has a right to obtain prescription medications from sources other than the nursing home’s contract pharmacy. The other pharmacy source must meet the prescription medication packaging requirements of the nursing home, at a cost that does not exceed that of the contracted pharmacy. Costs that exceed that of the contracted pharmacy shall be the responsibility of the resident.
4.10. Management of Residents’ Personal Funds.
4.10.1. The resident has the right to manage his or her own financial affairs, and the nursing home shall not require residents to deposit their personal funds with the nursing home.
4.10.2. Upon written authorization of a resident, the nursing home shall hold, safeguard, manage, and account for the personal funds of the resident deposited with the nursing home under the provisions of this rule.
4.10.3. Deposit of funds.
4.10.3.a. Funds in excess of $50.
4.10.3.a.1. A nursing home shall deposit any resident’s personal funds in excess of $50 in an interest-bearing account (or accounts) that is separate from any of the nursing home’s operating accounts and that credits all interest earned on a resident’s funds to that account.
4.10.3.a.2. In pooled accounts, there shall be a separate accounting for each resident’s share.
4.10.3.b. Funds less than $50. A nursing home shall maintain a resident’s personal funds that do not exceed $50 in a non-interest-bearing account, interest-bearing account, or petty cash fund.
4.10.4. Accounting and records:
4.10.4.a. A nursing home shall establish and maintain a system that assures a complete and separate accounting, according to generally accepted accounting principles, of each resident’s personal funds entrusted to the nursing home.
4.10.4.b. The system shall preclude any co-mingling of a resident’s funds with nursing home funds or with the funds of any person other than another resident.
4.10.4.c. The individual financial record shall be provided through quarterly statements and on request to the resident or his or her legal representative.
4.10.4.c.1. For any transaction from a resident’s account, the nursing home shall provide the resident with a receipt and retain a copy of the receipt.
4.10.4.c.2. The nursing home shall administer the funds on behalf of the resident in the manner directed by the resident or in the case of incapacity, the legal representative.
4.10.5. Notice of certain balances. A nursing home shall notify each resident who receives Medicaid benefits:
4.10.5.a. When the amount in the resident’s account reaches $200 less than the Supplemental Security Income (SSI) resource limit for one person; and
4.10.5.b. The amount in the account, in addition to the value of the resident’s other non-exempt resources, reaches the SSI resource limit for one person, and that the resident may lose eligibility for Medicaid or SSI.
4.10.6. Conveyance upon death or discharge.
4.10.6.a. Upon the death of a resident, any funds remaining in his or her personal account shall be made payable to the person or probate jurisdiction administering the estate of the resident. If after 30 days there has been no qualification over the decedent resident’s estate, those funds are presumed abandoned and are reportable to the State Treasurer pursuant to the West Virginia Uniform Unclaimed Property Act, W. Va. Code §§36-8-1, et seq.
4.10.6.b. Upon discharge of a resident with personal funds deposited with the nursing home, the nursing home shall convey, within 30 days, the resident’s funds and an accounting of those funds to the discharged resident or his or her legal representative.
4.10.7. Assurance of financial security. A nursing home shall purchase a bond or obtain and maintain commercial insurance with a company licensed in the state of West Virginia if the nursing home in any one month handles an amount greater than $35 per resident, per month in the aggregate.
4.10.7.a. The sum of the bond or insurance shall be at least 1.25 times the average amount of residents’ funds deposited with the nursing home during the nursing home’s previous fiscal year. Reference Table 71-15 .B. of this rule.
4.10.7.b. The insurance policy shall specifically designate the resident as the primary beneficiary or payee for reimbursement of lost funds.
4.10.7.c. A nursing home shall reimburse the resident, within 30 days, for any losses and seek its reimbursement through the bond or insurance.
4.10.7.d. A nursing home is responsible for any insurance deductible.
4.10.7.e. The director may require a nursing home to file an additional bond or purchase additional insurance in the following circumstances:
4.10.7.e.1. When the director determines that the amount of the bond or insurance is insufficient to protect the residents’ money; or
4.10.7.e.2. When the amount of the bond or insurance is impaired by recovery against it.
4.10.7.f. When a nursing home ceases to handle residents’ funds in amounts that require a bond or insurance, the director shall allow the release of the bond or insurance upon the nursing home providing an accounting to the residents.
4.10.7.g. When a nursing home determines, on the basis of professional judgment, that a resident is unable to manage his or her financial affairs and does not have a legal financial representative, the nursing home shall notify the resident’s next of kin to initiate guardianship or conservatorship. Prior to initiating an involuntary transfer or discharge based on non-payment, the nursing home shall notify the resident’s nearest next of kin, if known, to initiate guardianship or conservatorship.
4.10.7.h. If a nursing home determines, on the basis of professional judgment, that a resident is unable to manage his or her financial affairs and that his or her financial representative is not using the resident’s funds to pay for his or her stay, prior to initiating an involuntary transfer or discharge based on non-payment, a nursing home shall notify the appropriate authorities, including, but not limited to, Adult Protective Services pursuant to W. Va. Code §9-6-9.
4.11. Resident Work. A resident has the right to refuse to perform services for the nursing home, and a resident has the right to perform services for the nursing home if he or she chooses, when:
4.11.1. The nursing home has documented the need or desire for work in the resident’s plan of care;
4.11.2. The resident’s plan of care specifies the nature of the services to be performed and whether the services are voluntary or paid;
4.11.3. Compensation for paid services is at or above prevailing rates for the services; and
4.11.4. The resident agrees to the work arrangement described in the resident’s plan of care.
4.12. Bed-Hold and Readmission Rights.
4.12.1. Upon payment of the nursing home’s bed-hold rate or in the case of a Medicaid resident, in accordance with the policy and procedure currently prescribed by the State Plan, a resident has the right to retain the bed in the nursing home in which he or she is a resident. The nursing home shall notify a resident in writing at the time of admission and hospitalization or leave of absence, of the bed-hold policy.
4.12.2. After a hospitalization or a leave of absence for which there was no bed-hold, a former resident has the right to be re-admitted to the first available bed in a semi-private room in the nursing home from which he or she came, if the resident requires the services provided by the nursing home.
4.12.2.a. If a former resident wishes to return to the nursing home and meets the requirements for coverage under the Medicare program, the resident may be placed in a bed certified to participate in that program.
4.12.2.b. The nursing home shall accept the resident back from the hospital when the resident’s medical condition has stabilized, provided that the resident continues to require the services that the nursing home provides and a bed is available. If the nursing home elects to not accept the resident back, the nursing home shall comply with the applicable provisions of this rule.
4.12.2.c. If the nursing home is not certified under the Medicare program and the resident chooses placement in a nursing home providing Medicare coverage, at the resident’s request, the resident must be placed on a waiting list for readmission to the nursing home after Medicare coverage has ceased if the original nursing home can provide the necessary services to the former resident.
4.13. Admission, Transfer, and Discharge.
4.13.1. Refusal of Certain Transfers. A resident has the right to refuse a transfer to another room within the nursing home if the purpose of the transfer is to relocate:
4.13.1.a. A resident of a Medicare certified skilled nursing home (SNF) from the distinct part of the institution that is a SNF to a part of the institution that is not a SNF; or
4.13.1.b. A resident of a non-Medicare certified nursing home (NF), from the distinct part of the institution that is a NF to a distinct part of the institution that is a SNF.
4.13.2. Transfer and discharge requirements. The nursing home shall permit each resident to remain in the nursing home, unless:
4.13.2.a. The transfer or discharge is necessary for the resident’s welfare and the resident’s needs cannot be met in the nursing home;
4.13.2.b. The transfer or discharge is appropriate because the resident’s health has improved sufficiently so the resident no longer needs the services provided by the nursing home;
4.13.2.c. The health or safety of persons in the nursing home is endangered;
4.13.2.d. The resident has failed, after reasonable and appropriate notice, to pay for a stay at the nursing home; or
4.13.2.e. The nursing home ceases to operate.
4.13.3. Documentation.
4.13.3.a. When the reason for the transfer or discharge is consistent with subdivision 4.13.2.a., the documentation must include the specific resident needs that cannot be met, the facility’s attempt to meet the resident’s needs, and the service available at the receiving facility to meet the resident’s needs.
4.13.3.b. The documentation shall be made by the resident’s physician when transfer or discharge is necessary under the provisions of this rule.
4.13.4. Notice before transfer or discharge. Before a nursing home transfers or discharges a resident, it shall provide written notice to the resident and his or her legal representative as appropriate, of the transfer or discharge. The notice shall be in a language the resident understands and shall include the following:
4.13.4.a. The reason for the proposed transfer or discharge;
4.13.4.b. The effective date of the proposed transfer or discharge;
4.13.4.c. The location or other nursing home to which the resident is being transferred or discharged;
4.13.4.d. A statement that the resident has the right to appeal the action to the State Board of Review, with the appropriate information regarding how to do so;
4.13.4.e. The name, address, and telephone number of the State Long-Term Care Ombudsman;
4.13.4.f. For nursing home residents with developmental disabilities, the mailing address and telephone number of the agency responsible for the protection and advocacy of developmentally disabled persons; and
4.13.4.g. For nursing home residents with a mental health diagnosis, the mailing address and telephone number of the agency responsible for the protection and advocacy of persons or individuals with mental illness.
4.13.4.h. A copy of the notice of proposed transfer or discharge shall be sent to the State Long-Term Care Ombudsman within two business days such notice is provided to the resident.
4.13.5. Time of notice. The notice of transfer or discharge shall be made by the nursing home at least 30 days before the resident is discharged or transferred, except the notice shall be made as soon as practicable before a transfer or discharge when:
4.13.5.a. The safety of persons in the nursing home would be endangered;
4.13.5.b. The health of persons in the nursing home would be endangered;
4.13.5.c. The resident’s health improves sufficiently to allow a more immediate transfer or discharge;
4.13.5.d. An immediate transfer or discharge is required by the resident’s urgent medical needs; or
4.13.5.e. A resident has not resided in the nursing home for 30 days.
4.13.6. Orientation for Transfer or Discharge.
4.13.6.a. A nursing home shall provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the nursing home.
4.13.6.b. Involuntary Transfer. In the event of an involuntary transfer, the nursing home shall assist the resident, legal representative, or both in finding a reasonably appropriate alternative placement prior to the proposed transfer or discharge and by developing a plan designed to minimize any transfer trauma to the resident. The plan may include counseling the resident, legal representative, or both regarding available community resources and taking steps under the nursing home’s control to assure safe relocation.
4.13.7. Discharge to a Community Setting.
4.13.7.a. A nursing home shall not discharge a resident requiring the nursing home’s services to a community setting against his or her will.
4.13.7.b. A nursing home shall document that a resident who was voluntarily discharged to a community setting fully understood all options for care and helped develop a plan of care in anticipation of the resident’s discharge.
4.13.7.c. Each resident shall be fully informed of the right to refuse a discharge.
4.13.7.d. A nursing home shall provide information about and referral to the appropriate social service agencies and community resources offering assistance in facilitating a resident’s return to the community, as necessitated by the resident’s individual needs.
4.13.8. Discharge Against Medical Advice. In the event that the resident, or the resident’s legal representative on behalf of the resident who lacks the capacity to make health care decisions, chooses to discharge from the nursing home to a residence that does not provide the level of care or services required to maintain the resident’s health, safety, or both, the nursing home shall:
4.13.8.a. Immediately inform the resident’s attending physician;
4.13.8.b. Educate the resident, and the resident’s legal representative, if appropriate, regarding the possible consequences for discharging to an inappropriate placement;
4.13.8.c. Provide information about and referral to appropriate community resources, if requested by the resident.
4.13.8.d. Make a referral, as appropriate, to the adult protective services agency to promote resident safety;
4.13.8.e. Document the resident’s reason for discharging against medical advice, if known; and
4.13.8.f. Document all actions taken and the responses by the resident, legal representative, or both, in the resident’s medical record.
4.14. Equal Access to Quality Care.
4.14.1. Each resident or person requesting admission to a nursing home shall be free from discrimination by the nursing home, pursuant to W. Va. Code §§16B-17-1, et seq., and §§16B-18-1, et seq., unless the discrimination:
4.14.1.a. Is the result of the nursing home not being able to provide adequate and appropriate care, and treatment and services to the resident or applicant due to the resident’s or applicant’s history of mental or physical disease or disability; and
4.14.1.b. Is not contrary to a federal or state law, regulation, or rule:
4.14.1.b.1. That prohibits the discrimination; or
4.14.1.b.2. That requires the care to be provided if the nursing home participates in a financial program requiring the admittance or continued residence of the person.
4.14.2. For all persons, regardless of source of payment, a nursing home shall establish and maintain an identical set of policies and procedures regarding admission, transfer, discharge, and the provision of services.
4.14.3. Civil Rights.
4.14.3.a. A nursing home shall not segregate a resident, give separate treatment, restrict the enjoyment of any advantage or privilege enjoyed by others in the nursing home, or provide any aid, care services, or other benefits that are different from or are provided in a different manner from those provided to others in the nursing home on the grounds of a resident’s protected status based upon state and federal law.
4.14.3.b. A nursing home shall not deny admission to a prospective resident on the grounds of a resident’s protected status based upon state and federal law.
4.15. Admissions and Payment Policy.
4.15.1. A nursing home shall not require:
4.15.1.a. Residents or potential residents to waive their rights to Medicare or Medicaid; and
4.15.1.b. Oral or written assurance that residents or potential residents are not eligible for, or will not apply for, Medicare or Medicaid benefits.
4.15.2. Third Party Guarantee. A nursing home shall not require a third party guarantee of payment to the nursing home as a condition of admission or expedited admission or continued stay in the nursing home. A nursing home, however, may require for admission or for continued stay of the resident, that a person who has legal right and access to a resident’s income or resources available to pay for care to sign a contract, without incurring personal financial liability, to provide payment from the resident’s income or resources.
4.15.3. A nursing home shall fully inform each resident prior to or at the time of admission and during his or her stay, of services available in the nursing home and of related charges, including any charge for services not covered under Medicare or Medicaid, or not covered by the nursing home’s basic per diem rate, including the nursing home’s policy on providing toiletries, adult briefs, wheelchairs, and all personal care and medical items.
4.15.3.a. A nursing home may charge any amount for services furnished to non-Medicaid residents consistent with this paragraph.
4.15.3.b. Medicaid residents and their legal representatives shall be informed that if they desire a private room, they may privately supplement the Medicaid payment by directly paying the facility the difference between the semi-private room rate and the private room rate.
4.15.4. A nursing home shall inform residents in writing about Medicaid and Medicare eligibility and what is covered under those programs including information on resource limits, a general description of the resource amount, and allowable uses of the resident’s income for items and services not covered by Medicaid and Medicare.
4.15.5. In the case of a person eligible for Medicaid, a Medicaid/Medicare approved nursing home shall not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the State Medicaid Plan, any gift, money, donation, or other consideration as a precondition of admission, expedited admission, or continued stay in the nursing home.
4.15.5.a. A nursing home may charge a resident who is eligible for Medicaid for items and services the resident has requested and received, and that are not specified in the State Medicaid Plan as included in the term “nursing home services” if the nursing home gives proper notice of the availability and cost of these services to residents and does not condition the resident’s admission or continued stay on the request for or receipt of such additional services.
4.15.5.b. A nursing home may solicit, accept, or receive a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to a Medicaid eligible resident or potential resident, but only to the extent that the contribution is not a condition of admission, expedited admission, or continued stay in the nursing home for a Medicaid eligible resident.
4.15.6. A nursing home shall give the resident a 30 day notice when changes are made to items and services under the provisions of this rule.
4.16. Freedom from Restraint and Abuse.
4.16.1. General. Each resident shall be free from mental and physical abuse, and free from chemical and physical restraints and abuse except when the restraint is authorized in writing by a physician for a specified and limited period of time, except under emergency circumstances; and
4.16.1.a. The restraint is necessary to protect the resident from injury to himself or others; or
4.16.1.b. The restraint is used as a therapeutic intervention or enabler for specified periods of time to attain and maintain the resident’s highest practicable physical, mental, or psychosocial well-being.
4.16.2. Restraints.
4.16.2.a. Before a resident is restrained, the nursing home shall conduct and document a comprehensive restraint assessment that includes:
4.16.2.a.1. Identifying the behaviors or clinical indications for why the resident may be a candidate for use of a restraint. The resident, and in the case of incapacity to make health care decisions, the resident’s legal representative, shall be involved throughout this process, as well as appropriate disciplines, as indicated based on the resident’s needs;
4.16.2.a.2. Identifying the causal factors;
4.16.2.a.3. Identifying, assessing, and attempting restraint free interventions that are appropriate for the person; and
4.16.2.a.4. The following, if alternatives to restraints are not found to be practicable:
4.16.2.a.4.A. A full explanation to the resident, and in the case of incapacity to make health care decisions, the resident’s legal representative, of the reasons for using the restraint, the benefits and risks of the restraint, and the obtaining of written consent from the resident, and in the case of incapacity to make health care decisions, the resident’s legal representative;
4.16.2.a.4.B. Documentation that the use of the restraint will enhance the resident’s quality of life and functional abilities and is clinically beneficial; and
4.16.2.a.4.C. An assessment of the resident to identify the least restrictive type of restraint that will provide for the resident’s needs.
4.16.2.b. Physician’s order. After a comprehensive restraint assessment indicates the need for a restrain and the resident’s attending physician concurs, the resident’s attending physician shall write an order to be included in the resident’s plan of care specifying the type, precise application, circumstances, and duration of the restraint.
4.16.2.c. The resident’s plan of care shall include, at a minimum:
4.16.2.c.1. The type and size of restraint that is to be used;
4.16.2.c.2. When the restraint is to be used;
4.16.2.c.3. For physical restraints, a schedule of release time and what individualized activity is to be provided during that period of time; and
4.16.2.c.4. A systematic and gradual process to reduce the restraint, eliminate it, or both.
4.16.2.d. Application. Nursing home staff shall apply the physical restraints in accordance with the manufacturer’s instructions and in a manner to allow for quick release.
4.16.2.e. Monitoring and release. Nursing home staff shall directly monitor a resident who has been restrained at least every half hour. The resident shall be released from the restraint at least every two hours and provided exercise, toileting, and skin care.
4.16.2.f. Policies and procedures. A nursing home shall establish and implement policies and procedures for restraint use.
4.16.2.g. Emergency.
4.16.2.g.1. In the case of an emergency, licensed nursing personnel authorized by the nursing home in writing may order the use of a physical restraint for a specified and limited period of time not to exceed 24 hours until the resident’s attending physician can be notified of the resident’s condition requiring the emergency application.
4.16.2.g.2. Continued use is subject to the same evaluation process described in this Subdivision and shall be ordered by the resident’s attending physician.
4.16.2.h. Bed rails. The nursing home shall attempt to use appropriate alternatives prior to installing a side or bed rail. If a side or bed rail is used, the facility shall ensure correct installation, use, and maintenance of side or bed rails, including, but not limited to, the following elements:
4.16.2.h.1. Assess the resident for risk of entrapment from side or bed rails prior to installation;
4.16.2.h.2. Review the risks and benefits of side or bed rails with the resident or legal representative and obtain informed consent prior to installation;
4.16.2.h.3. Ensure that the bed’s dimensions are appropriate for the resident’s size and weight; and
4.16.2.h.4. Follow the manufacturer’s recommendations and specifications for installing and maintaining side or bed rails.
4.16.3. Chemical Restraints with Antipsychotic Drugs. Residents shall be free from the use of antipsychotic drugs used as a chemical restraint. Based on comprehensive assessment of a resident, the nursing home shall ensure that:
4.16.3.a. Residents who have not used antipsychotic drugs are not given these drugs unless antipsychotic drug therapy is necessary to treat a specific condition as diagnosed and documented in the clinical record;
4.16.3.b. Residents who use antipsychotic drugs receive gradual dose reductions and behavioral interventions, unless clinically contraindicated, in an effort to discontinue these drugs;
4.16.3.c. Residents do not receive antipsychotic drugs pursuant to a PRN order unless that medication is necessary to treat a diagnosed specific condition that is documented in the clinical record;
4.16.3.d. PRN orders for antipsychotic drugs are limited to 14 days. Except as provided in subdivision 4.16.3.e. of this rule, if the attending physician or prescribing practitioner believes that it is appropriate for the PRN order to be extended beyond 14 days, he or she should document their rationale in the resident’s medical record and indicate the duration for the PRN order;
4.16.3.e. PRN orders for antipsychotic drugs are limited to 14 days and cannot be renewed unless the attending physician or prescribing practitioner evaluates the resident for the appropriateness of that medication;
4.16.3.f. Residents, and the resident’s legal representative in the case of incapacity to make health care decisions, receive a full explanation of the reasons for using the psychotropic drug, including the benefits and risks of the psychotropic drug; and
4.16.3.g. Residents, and the resident’s legal representative in the case of incapacity to make health care decisions, provide written consent to the use of the psychotropic drug. The nursing home shall maintain documentation of the information provided and consent received in the resident’s medical record.
4.16.4. Abuse.
4.16.4.a. A resident has the right to be free from verbal, sexual, physical, and mental abuse, financial exploitation, discrimination, denial of privileges, corporal punishment, and involuntary seclusion.
4.16.4.b. Staff treatment of residents. The nursing home shall develop and implement written policies and procedures that prohibit neglect of residents, abuse of residents, and misappropriation of resident property. The policy and procedures shall address the screening, training, prevention, identification, investigation, protection, reporting, and response of allegations of resident neglect, abuse, and misappropriation of resident property.
4.16.4.c. A nursing home shall ensure that all alleged violations involving mistreatment, neglect, exploitation, or abuse, including of unknown source, and misappropriation of resident property are reported in accordance with state law.
4.16.4.d. A nursing home shall document that all alleged violations are thoroughly investigated and shall take appropriate steps to prevent further potential abuse while the investigation is in progress.
4.16.4.e. The results of all investigations shall be reported to the administrator or his or her designated representative and to other officials in accordance with state law, including the director within five working days of the incident, and if the alleged violation is verified appropriate corrective action shall be taken.
4.17. Complaint Procedures.
4.17.1. A nursing home shall develop and implement written procedures for registering and responding to complaints by residents, their legal representatives, and the public.
4.17.2. A nursing home shall designate an employee to be responsible for receiving complaints.
4.17.3. A nursing home shall establish a method to inform the administrator of all complaints.
4.17.4. A nursing home shall establish a process for investigation and assessment of the validity of all complaints.
4.17.5. A nursing home shall provide a mechanism to record all complaints received and any action taken on them and to communicate the findings or outcomes to the resident, or the resident’s legal representative, making the complaint.
4.17.6. A nursing home shall assure that careful consideration is given to each complaint even when it has been made by a person who often makes complaints having no valid basis.
4.17.7. A nursing home shall establish a program to assure that its personnel are familiar with complaint policies and procedures.
4.17.8. A nursing home shall establish a program to educate residents and their legal representatives about the nursing home’s complaint policies and procedures.
W. Va. Code R. § 71-15-5 Quality of Life
5.1. A nursing home shall care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life, and in accordance to their individual needs and preferences.
5.2. Dignity.
5.2.1. Each resident shall be treated with consideration and respect and with full recognition of his or her dignity and individuality.
5.2.2. The resident shall have the exclusive right to use and enjoy his or her personal property, and the property shall not used by other residents or staff without the express permission of the resident.
5.3. Privacy.
5.3.1. Communication. A resident may associate and communicate privately with persons of his or her choice.
5.3.2. Mail. A resident shall receive his or her personal mail unopened unless a request to the contrary has been made to the staff by the resident.
5.3.3. Married Couples. A married resident shall be assured privacy for visits by his or her spouse. A resident has the right to share a room with his or her spouse when married residents live in the same nursing home and both spouses consent to the arrangement.
5.3.4. Roommates. Two residents have the right to share a room if both consent to the arrangement, subject to the availability of such accommodations within the facility.
5.3.5. Telephone. A resident shall be assured reasonable access to a telephone located in a quiet area where the resident can conduct a private conversation without being overheard or disturbed by others.
5.3.6. Electronic Communications. The resident has the right to have reasonable access to and privacy in their use of electronic communications such as email and video communications and for internet research, provided that access is available to the nursing home. Access to electronic communications shall be at the resident’s expense, if any additional expense is incurred by the nursing home to provide such access to the resident and such use must comply with state and federal law.
5.3.7. A resident has the right to personal privacy regarding accommodations, medical treatment, written communications, personal care, visits, and meetings of family and resident groups, but this does not require the nursing home to provide a private room for each resident.
5.4. Self-Determination and Participation. The resident has the right to:
5.4.1. Choose activities, schedules, and health care consistent with his or her interests, assessments, and plans of care;
5.4.2. Interact with members of the community both inside and outside the nursing home;
5.4.3. Make choices about aspects of his or her life in the nursing home that is significant to the resident;
5.4.4. Retain and use personal clothing and possessions and make his or her room as homelike as possible, according to his or her individual tastes and desires taking into consideration, space limitations, other residents’ rights, and safety and sanitation issues. A nursing home may specify in the admission contract the nursing home’s liability for a resident’s personal clothing and possessions;
5.4.5. Practice their religion and religious beliefs as they choose, as long as it does not impinge upon the rights of others; and
5.4.6. Participate in planning care and treatment.
5.5. Access and Resident and Family Groups and Councils. Each resident shall be encouraged and assisted with exercising his or her rights as a resident of the nursing home and as a citizen or resident of the United States. The resident shall be assisted with voicing grievances and recommending changes in policies and services without fear of reprisal, interference, coercion, punishment, or discrimination.
5.5.1. Access and Visitation Rights.
5.5.1.a. A nursing home shall not deny a resident immediate access to, and shall provide immediate access to a resident by:
5.5.1.a.1. A representative of a government agency with jurisdiction over some aspect of the nursing home;
5.5.1.a.2. The ombudsman; and
5.5.1.a.3. Any other individual, whether the individual is a relative or a non-relative, of the resident’s choosing.
5.5.1.b. A person entering a nursing home, other than a representative of the director, who has not been invited by a resident or a resident’s legal representative shall:
5.5.1.b.1. Advise the administrator or other available agent of the nursing home of his or her presence upon entering the facility;
5.5.1.b.2. Not enter the living area of a resident without identifying himself or herself to the resident and without receiving the resident’s permission to enter;
5.5.1.b.3. Terminate a visit with a resident upon request of the resident;
5.5.1.b.4. Be permitted to visit all areas of the nursing home except:
5.5.1.b.4.A. Living areas of a resident who objects;
5.5.1.b.4.B. Business records of the nursing home unless the administrator consents;
5.5.1.b.4.C. Personal and medical records of the resident, unless the resident or in case of incapacity to make health care decisions, the resident’s legal representative, consents in writing;
5.5.1.b.4.D. Food service areas requiring sanitary conditions;
5.5.1.b.4.E. A pharmaceutical or secure area; or
5.5.1.c. A nursing home may establish preferred visiting hours consisting of at least eight hours per day between 8:00 a.m. and 8:00 p.m., seven days a week. Facilities must provide 24 hours visitation rights to all individuals with the resident’s consent. The visitation privileges are subject to the resident’s expressed preferences. A nursing home may impose reasonable restrictions to protect the security of all the facility’s residents and may change the location of visits to assist caregiving or protect the privacy of other residents. Visitation privileges are subject to other provisions of this rule. Visiting hours shall be posted conspicuously in a public place in the nursing home.
5.5.1.d. Relatives, non-relatives of the resident’s choosing, and members of the clergy shall be permitted to visit a seriously ill resident without restriction to the extent possible.
5.5.2. Resident’s Refusal.
5.5.2.a. The resident has the right to refuse a visit and the visit shall be terminated upon the resident’s request.
5.5.2.b. In the case of an incapacitated person, the legal representative, consistent with the limits of his or her authority, may refuse visits on behalf of the resident only if the legal representative demonstrates that the visits have a harmful effect on the resident. All relevant information shall be documented in the resident’s medical record.
5.5.3. Administration’s Exclusion.
5.5.3.a. The administrator or designee in charge of the nursing home may refuse a visitor access or require the visitor to leave only if:
5.5.3.a.1. In the judgment of the administrator, or his or her designee, the presence of the visitor is detrimental to the health, safety, or welfare of the resident or other residents or the visitor or the functioning of the nursing home;
5.5.3.a.2. Access is sought for financial solicitation or commercial purposes, or;
5.5.3.a.3. A resident does not wish the visitor to stay.
5.5.3.b. The restriction and the reasons for it shall be documented and kept on file.
5.5.4. Resident and Family Groups and Councils.
5.5.4.a. Residents have the right to organize, maintain, and participate in resident groups in the nursing home.
5.5.4.b. A resident has the right to have family and friends meet in the nursing home with the families of other residents.
5.5.4.c. The nursing home shall provide a resident or family group with private space for meetings.
5.5.4.d. The nursing home shall provide assistance for resident or family group meetings, if requested.
5.5.4.e. Staff or visitors may attend resident or family group meetings only at the group’s invitation.
5.5.4.f. The nursing home shall respond in writing to oral and written requests from resident and family council meetings. Resident councils and family councils shall be encouraged to make recommendations regarding nursing home policies.
5.5.4.g. The nursing home shall provide a designated staff person responsible for providing assistance and responding to written requests that result from group meetings.
5.5.4.h. When a resident or family group exists, the nursing home shall listen to the views and act upon the grievances and recommendations of residents and families concerning proposed policy and operational decisions affecting resident care and life in the nursing home.
5.6. Participation in Other Activities. A resident has the right, at his or her discretion, to participate in social, religious, and community activities that do not interfere with the rights of other residents in the nursing home.
5.7. Accommodation of Resident Needs.
5.7.1. A resident has the right to reside and receive services in the nursing home with reasonable accommodations for individual needs and preferences, except when the health or safety of the person or other residents would be endangered.
5.7.2. A resident has the right to receive written notice before the resident’s room or roommate in the nursing home is changed and to be informed of the reason for the change. The written notice shall contain the date of the proposed change and the reason for the change as allowed by the privacy and confidentiality provisions of this rule. The nursing home shall make efforts to assure that the changes are implemented with the least disruption to the resident’s life.
5.8. Activities.
5.8.1. The nursing home shall provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and psychosocial well-being of each resident. The ongoing program of activities shall include, where feasible, activities that occur outside the nursing home, and provide for evening and weekend activities.
5.8.2. The activities program shall be directed by a person who:
5.8.2.a. Is a qualified therapeutic recreation specialist or activities professional who has two years experience in a social or recreational program within the last five years, one of which was a full-time in a resident activities program in a health care setting; or
5.8.2.b. Is a qualified occupational therapist or occupational therapy assistant or
5.8.2.c. Has demonstrated the ability to provide for an ongoing program of activities designed to meet, in accordance with the comprehensive assessment, the interests and the physical, mental, and psychosocial well-being of each resident; and has completed a training course approved by the state.
5.8.3. If the intended activities director does not meet the requirements above, he or she shall require regularly scheduled consultation by a person who meets the qualifications described in this rule. The consultation by a qualified consultant may continue until the time a candidate can meet the required qualifications, but not for more than a period of 12 months from the date of hire. A qualified activities consultant is a qualified professional who is a qualified therapeutic recreation specialist or activities professional who is licensed, registered or certified, if applicable, and has three years of experience in a social or recreational program. This person shall:
5.8.3.a. Visit the nursing home as indicated by the needs of the nursing home and its residents, but not less than eight hours quarterly; and
5.8.3.b. Provide a written, dated report, containing the time and duration of the visit and a summary of the findings with recommendations for improvements in the program to the administrator and the activities director, within 10 working days of the completion of the onsite visit.
5.8.4. The duties of the activities director shall include:
5.8.4.a. Developing the nursing home’s recreational and activities plan; organizing and directing the program, developing and implementing a written monthly activities calendar at least one month in advance; completing an accurate resident assessment and care plan; documenting participation or nonparticipation in activities and reasons for nonparticipation as it relates to the resident’s care plan; and maintaining a current record of community services, resources, programs, and nursing homes materials available to the residents, staff, and families; and
5.8.4.b. Designing an activities program to restore, maintain, and improve functioning and well-being in conjunction with the care plan for the individual resident.
5.9. Social Services.
5.9.1. The nursing home shall provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.
5.9.2. A nursing home with 60 or more beds shall employ a qualified social worker on a full-time basis.
5.9.3. A qualified social worker is a person with:
5.9.3.a. A license to practice social work in the state of West Virginia; and
5.9.3.b. Who has a demonstrated ability to provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.
W. Va. Code R. § 71-15-6 Resident Assessment
6.1. The nursing home shall conduct a comprehensive, accurate, standardized, and reproducible assessment of each resident’s functional capacity.
6.2. Admission Orders. At the time each resident is admitted, the nursing home shall have physician orders for the resident’s immediate care.
6.3. Comprehensive Assessments.
6.3.1. The nursing home shall make a comprehensive assessment of a resident’s needs which:
6.3.1.a. Is based on a uniform data set and instrument specified by the director; and
6.3.1.b. Describes the resident’s capability to perform daily life functions and any significant impairments in functional capacity.
6.3.2. The comprehensive assessment shall include the resident’s:
6.3.2.a. Identification and demographic information;
6.3.2.b. Customary routine;
6.3.2.c. Cognitive patterns;
6.3.2.d. Communication;
6.3.2.e. Vision;
6.3.2.f. Mood and behavior patterns;
6.3.2.g. Psychosocial well-being;
6.3.2.h. Physical functioning and structural problems;
6.3.2.i. Continence;
6.3.2.j. Disease diagnosis and health conditions;
6.3.2.k. Dental and nutritional status;
6.3.2.l. Skin conditions;
6.3.2.m. Activity pursuit;
6.3.2.n. Medications;
6.3.2.o. Special treatments and procedures;
6.3.2.p. Discharge potential;
6.3.2.q. Documentation and summary information regarding the additional assessment performed through the resident assessment protocols.
6.3.2.r. Documentation of participation in assessment.
6.3.3. Frequency. Comprehensive assessments shall be conducted:
6.3.3.a. No later than 14 days after the date of admission;
6.3.3.b. Within 14 days after the facility determines, or should have determined that there has been a significant change in the resident’s physical and mental condition; and
6.3.3.c. In no case less often than every 366 days.
6.3.4. Review of Assessments. A nursing home shall examine each resident no less than once every 92 days, and as appropriate, revise the resident’s assessment to assure the continued accuracy of the assessment.
6.3.5. Use. The nursing home shall use the results of the assessment to develop, review, and revise the resident’s comprehensive plan of care under the provisions of this rule.
6.3.6. Coordination. A nursing home shall coordinate assessments with any state-required pre-admission screening program to the maximum extent practicable to avoid duplicative testing and effort.
6.4. Accuracy of Assessments.
6.4.1. Each assessment shall be conducted or coordinated with the appropriate participation of health professionals.
6.4.2. Each assessment shall be conducted or coordinated by a registered nurse who signs and certifies the completion of the assessment.
6.4.3. Each person who completes a portion of the assessment shall sign and certify the accuracy of that portion of the assessment.
6.4.4. Civil money penalty for falsification. A person who willfully and knowingly certifies, or causes another person to certify, a material and false statement in a resident assessment is subject to civil money penalties.
6.4.5. Use of independent assessors. If the director determines, under an inspection or otherwise, that there has been a knowing and willful certification of false statements under the provisions of this rule the director, in consultation with the Inspector General, may require, for a period of time specified by the director, that resident assessments under this section be conducted and certified by persons who are independent of the nursing home and who are approved by the director.
W. Va. Code R. § 71-15-7 Comprehensive Care Plans
7.1. Development of the Care Plan. The nursing home shall develop a comprehensive care plan for each resident that includes measurable objectives and timetables to meet a resident’s medical, nursing, mental and psychosocial needs that are identified in the comprehensive assessment. The comprehensive care plan shall describe the following:
7.1.1. The services that are to be furnished to attain or maintain the resident’s highest practicable physical, mental, and psychosocial well-being as required under the provisions of this rule; and
7.1.2. Any services that would otherwise be required under the provisions of this rule, but are not provided due to the resident’s exercise of rights including the right to refuse treatment.
7.2. Timing of the Care Plan and Participation Requirements. A comprehensive care plan shall be:
7.2.1. Developed within seven days after the completion of the comprehensive assessment;
7.2.2. Prepared by an interdisciplinary team, which includes the attending physician, a registered nurse with responsibility for the resident, other appropriate staff in disciplines as determined by the resident’s needs, and to the extent practicable, the participation of the resident and the resident’s family with the consent of the resident or the resident’s legal representative; and
7.2.3. Periodically reviewed and revised by a team of appropriate persons after each assessment.
7.3. Services Provided Under a Care Plan. The services provided or arranged by the nursing home shall:
7.3.1. Meet professional standards of quality; and
7.3.2. Be provided by qualified persons in accordance with each resident’s written plan of care.
7.4. Plans for Care and Medical Records.
7.4.1. Plans for care.
7.4.1.a. The resident’s plan of care shall be developed for each resident upon admission and maintained by the nursing service in cooperation with all other services. Each resident and appropriate legal representative shall be provided a copy of the resident’s plan of care upon their request.
7.4.1.b. The plan of care shall provide a profile of the needs of the individual resident, identify the role of each service in meeting those needs, and the supportive measures each service will use to complement each other service in the accomplishment of the overall goal of care.
7.4.1.c. The plan of care shall be in writing and contain at least the following:
7.4.1.c.1. The goals to be accomplished;
7.4.1.c.2. Individually designed activities to meet the goals;
7.4.1.c.3. Therapies;
7.4.1.c.4. Treatments, including diet requirements; and
7.4.1.c.5. A statement of which discipline or professional service person is responsible for each element prescribed in the plan.
7.4.1.d. A nursing home shall have written policies and procedures to ensure that through the resident care conferences or other means of coordination, the resident care plan shall be reviewed and revised as needed, but at least quarterly. The review shall be noted in the medical record.
7.4.1.e. Policies and procedures shall delineate the rules and responsibilities of each service in relation to the resident care plan.
7.4.1.f. The resident care plan shall be available for use by all personnel caring for the resident.
7.4.1.g. Relevant information from the resident care plan shall be made available with other information that is conveyed when the resident is transferred to another nursing home, an acute care facility, or referred for continuing care by other agencies upon discharge to the community.
7.4.1.h. The nursing home shall maintain a discharge plan for each resident and shall include at least the following:
7.4.1.h.1. An initial assessment including discharge potential and goals, completed at admission or within no more than seven days after admission;
7.4.1.h.2. Relevant information concerning such areas as nursing assessment, social history, rehabilitation potential, resident’s needs at discharge, and available community resources; and
7.4.1.h.3. Periodic review and re-evaluation on a monthly basis for the three months after admission and then at least quarterly.
7.4.2. Discharge.
7.4.2.a. General. When a resident is discharged to another nursing home or location or to his or her home, the nursing home shall prepare a discharge summary prior to the discharge. The summary shall be conveyed to the receiving nursing home or location at the time of discharge. The summary shall include:
7.4.2.a.1. The resident’s name and identifying number;
7.4.2.a.2. The name of the attending physician;
7.4.2.a.3. The date of admission;
7.4.2.a.4. The date of discharge;
7.4.2.a.5. A provisional and final diagnosis;
7.4.2.a.6. The course of treatment and care in the nursing home;
7.4.2.a.7. Pertinent diagnostic findings;
7.4.2.a.8. Essential information regarding the resident’s illness or problems;
7.4.2.a.9. Restorative procedures;
7.4.2.a.10. Medication instructions; and
7.4.2.a.11. The nursing home, agency, or location to which the resident was discharged:
7.4.2.b. Anticipated Discharge. When a discharge is anticipated, a nursing home shall prepare for the resident a discharge summary that includes:
7.4.2.b.1. A recapitulation of the resident’s stay;
7.4.2.b.2. A final summary of the resident’s status within the provisions of this rule, prepared at the time of the discharge, that is available for release to authorized persons and agencies with the consent of the resident or legal representative;
7.4.2.b.3. Thirty day notification of the discharge as appropriate and in compliance with other provisions of this rule; and
7.4.2.b.4. If the resident is discharged to his or her home, the resident shall be given appropriate information concerning his or her needs for care and medications including a post-discharge plan of care that is developed with the participation of the resident and his or her family, which will assist the resident to adjust to his or her new living environment.
7.4.2.c. The death of a resident shall be reported immediately to the attending physician and to the resident’s legal representative and family as relevant. The discharge summary shall include the requirements specified in this rule.
7.4.2.d. A nursing home shall complete medical records promptly within a time period specified in the nursing homes policies and procedures manual, not to exceed 30 days after the resident is discharged.
7.4.2.d.1. The discharge summary shall contain a dated physician’s signature.
7.5. When a nursing home resident is also a patient of a hospice, the nursing home and the hospice shall communicate, establish, and agree upon a coordinated plan of care for both providers that is based on an assessment of the individual resident’s needs.
W. Va. Code R. § 71-15-8 Quality of Care
8.1. Each resident shall receive, and the nursing home shall provide, the necessary care and services to attain or maintain the highest practicable physical, spiritual, mental, and psychosocial well-being of the residents, in accordance with the comprehensive assessment and plan of care.
8.2. Activities of Daily Living. Based on the comprehensive assessment of a resident, the nursing home shall ensure that:
8.2.1. A resident’s abilities in activities of daily living do not diminish unless circumstances of the resident’s clinical condition demonstrate that diminution was unavoidable. Activities of daily living include the resident’s ability to:
8.2.1.a. Bathe, dress, and groom;
8.2.1.b. Transfer and ambulate;
8.2.1.c. Use the toilet;
8.2.1.d. Eat; and
8.2.1.e. Use speech, language, or other functional communication systems.
8.2.2. A resident is given the appropriate treatment and services to maintain or improve his or her abilities specified in this rule.
8.2.2.a. Assistive devices. The nursing home shall provide special eating equipment and utensils for residents who need them.
8.2.2.b. The nursing home shall evaluate residents having potential to benefit from the assistive devices to assure that the assistive devices meet the resident’s needs; and
8.2.3. A resident who is unable to carry out activities of daily living receives the necessary services to maintain good nutrition, grooming, and personal and oral hygiene.
8.3. Vision and Hearing. To ensure that residents receive proper treatment and assistive devices to maintain vision and hearing abilities, the nursing home shall, if necessary, assist the resident:
8.3.1. In making appointments; and
8.3.2. By arranging for transportation to and from the office of a practitioner specializing in the treatment of vision or hearing impairment or the office of a professional specializing in the provision of vision or hearing assistive devices.
8.4. Pressure Sores. Based on the comprehensive assessment of a resident, the nursing home shall ensure that:
8.4.1. A resident who enters the nursing home without pressure sores does not develop pressure sores unless the resident’s clinical condition demonstrates that they were unavoidable; and
8.4.2. A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection, and prevent new sores from developing.
8.5. Urinary Incontinence. Based on the resident’s comprehensive assessment, the nursing home shall ensure that:
8.5.1. A resident who enters the nursing home without an indwelling catheter is not catheterized unless the resident’s clinical condition demonstrates that catheterization is necessary;
8.5.2. A resident who has an in-dwelling catheter has a documented medical reason for the catheter; and
8.5.3. A resident who is incontinent of bladder receives appropriate treatment and services to prevent urinary tract infections and to restore as much normal bladder function as possible, unless the restoration of function is not possible due to the physical or cognitive condition of the resident.
8.6. Range of Motion. Based on the comprehensive assessment of a resident, the nursing home shall ensure that:
8.6.1. A resident who enters the nursing home without a limited range of motion does not experience a reduction in range of motion unless the resident’s clinical condition demonstrates that a reduction in range of motion is unavoidable; and
8.6.2. A resident with a limited range of motion receives appropriate treatment and services to increase range of motion or to prevent further decrease in a range of motion.
8.7. Mental and Psychosocial Functioning. Based on the comprehensive assessment of a resident, the nursing home shall ensure that:
8.7.1. A resident who displays mental or psychosocial adjustment difficulty receives appropriate treatment and services to correct the assessed problem; and
8.7.2. A resident whose assessment did not reveal a mental or psychosocial adjustment difficulty does not display a pattern of decreased social interaction or increased withdrawn, angry or depressive behaviors, unless the resident’s clinical condition demonstrates that such a pattern is unavoidable.
8.8. Feeding Tubes. Based on the comprehensive assessment of a resident, the nursing home shall ensure that:
8.8.1. A resident who has been able to eat enough alone or with assistance is not fed by tube unless the resident’s clinical condition demonstrates that use of a feeding tube is unavoidable; and
8.8.2. A resident who is fed enterally receives the appropriate treatment and services to prevent secondary complications such as reflux, aspiration, aspiration pneumonia, diarrhea, vomiting, dehydration, and metabolic abnormalities, and to restore, if possible, normal eating skills.
8.9. Accidents.
8.9.1. A nursing home shall provide an environment that remains as free from accident hazards as possible.
8.9.2. A nursing home shall provide an environment where each resident receives adequate supervision and assistive devices to prevent accidents.
8.9.3. The nursing home shall complete a written report of any incident or accident in which a resident is involved, either inside or outside of the nursing home.
8.9.4. The report shall include the:
8.9.4.a. Date of the occurrence;
8.9.4.b. Time of the occurrence;
8.9.4.c. Place of the occurrence;
8.9.4.d. Details of the occurrence; and
8.9.4.e. Date and signature of the reviewing physician.
8.9.5. The report shall be written and signed by the person who is responsible for the resident at the time that the accident or incident occurred.
8.10. Nutrition. Based on a resident’s comprehensive assessment, the nursing home shall ensure that a resident:
8.10.1. Maintains acceptable parameters of nutritional status, unless the resident’s clinical condition demonstrates that this is not possible;
8.10.2. Receives a therapeutic diet when there is a nutritional problem; and
8.10.3. Who has an unplanned weight loss or gradual progressive unexplained weight loss shall have a thorough nutritional assessment, including appropriate laboratory studies. The unplanned or unexplained weight loss shall be assessed by the following parameters:
8.10.3.a. A significant weight loss of five percent or a severe weight loss of greater than five percent in a one month interval;
8.10.3.b. A significant weight loss of seven and a half percent or a severe weight loss of greater than seven and a half percent in a three month interval;
8.10.3.c. A significant weight loss of ten percent or a severe weight loss of greater than ten percent in a six month interval.
8.11. Hydration. A nursing home shall provide each resident with sufficient fluid intake to maintain proper hydration and health.
8.12. Special Needs. A nursing home shall ensure that residents receive proper treatment and care for the following special needs:
8.12.1. Injections;
8.12.2. Parenteral and enteral fluids;
8.12.3. Colostomy, ureterostomy, or ileostomy care;
8.12.4. Tracheostomy care;
8.12.5. Tracheal suctioning;
8.12.6. Respiratory care;
8.12.7. Foot care;
8.12.8. Prostheses; and
8.12.9. Skin conditions.
8.13. Medications and Drugs.
8.13.1. Each resident’s drug regimen shall be free from unnecessary drugs. An unnecessary drug is any drug used in any of the following circumstances or combinations of circumstances:
8.13.1.a. In excessive doses (including duplicate therapy);
8.13.1.b. For excessive duration;
8.13.1.c. Without adequate monitoring;
8.13.1.d. Without adequate indications for its use; or
8.13.1.e. In the presence of adverse consequences that indicate the dose should be reduced or discontinued.
8.13.2. Medication Errors. The nursing home shall ensure that:
8.13.2.a. It is free of medication error rates of five percent or greater; and
8.13.2.b. Residents are free of any significant medication errors.
8.13.3. Controlled Drugs Policy. The nursing home shall have policies and procedures regarding the procurement, storage, dispensing, administration, and disposition of controlled substances that conforms to the Uniform Controlled Substances Act, W. Va. Code §§60A-1-101, et seq., federal regulations and the rules of the West Virginia Board of Pharmacy.
8.14. Nursing Services Staffing.
8.14.1. A nursing home shall have sufficient nursing personnel to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. Staffing shall not, other than during short unforeseeable emergencies, be less than an average of 2.25 hours of nursing personnel time per resident per day.
8.14.a.1. Minimum hours of resident care personnel to residents are outlined in Table 71-15.A. of this rule.
8.14.a.2. Facilities with fewer than 51 beds are staffed at higher hours as outlined in table 71-15.A. of this rule.
8.14.2. A nursing home shall provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans:
8.14.2.a. Licensed nurses; and
8.14.2.b. Other nursing personnel. Based on the residents’ needs and the nursing home services, the nursing home may determine the combination of licensed nurse time and nurse aide time if the total meets the minimum 2.25 hours nursing personnel time requirement.
8.14.3. Charge Nurse. A nursing home shall designate a licensed nurse to serve as a charge nurse on each shift;
8.14.4. Registered Nurse. A nursing home shall have a registered nurse on duty in the facility for at least eight consecutive hours, seven days a week. In facilities with fewer than 60 beds, the director of nursing may serve to meet this requirement.
8.14.5. Nurse on Call. If there is not a registered professional nurse on duty, there shall be a registered professional nurse on call.
8.14.6. Director of Nursing. A nursing home shall designate in writing a registered nurse to serve as the director of nursing services on a full-time basis, who shall be on duty at least five days a week, eight hours a day during the day shift.
8.14.7. The director may require staffing ratios above the specified minimum ratios if necessary to meet the residents’ needs.
8.14.8. Paid Feeding Assistants. Paid feeding assistants are authorized to feed residents who have no feeding complications, under the direct supervision of a registered professional nurse (RN) or a licensed practical nurse (LPN).
8.14.8.a. Paid feeding assistants may set up a resident’s meal tray for dining, assist in feeding the resident, and record the resident’s intake at the meal.
8.14.8.b. Paid feeding assistants are to be used in accordance with the Office of Inspector General, Office of Health Facility Licensure and Certification Guidelines for Paid Feeding Assistants which can be located on the Office of Inspector General website at oig.wv.org.
8.14.9. Posting of Nurse Staffing Information. The nursing home shall post the following information on a daily basis.
8.14.9.a. The current date, resident census, and the total number and actual hours worked by the following categories of licensed and unlicensed nursing staff directly responsible for resident care per shift, including:
8.14.9.a.1. Registered nurses;
8.14.9.a.2. Licensed practice nurses; and
8.14.9.a.3. Registered nurse aides.
8.14.9.b. The nursing home must post this information in a clear and readable document; and in a prominent place readily accessible to residents and visitors.
8.14.9.c. The nursing home shall, upon oral or written request, make the nurse staffing data available to the public for review. Copies of the nurse staffing data is subject to a charge not to exceed 25 cents per page.
8.14.9.d. The nursing home shall maintain the posted nurse staffing data for a minimum of 18 months.
8.15. Dietary Services.
8.15.1. Dietary Staffing.
8.15.1.a. Dietitian. A nursing home shall employ a qualified dietitian either full-time, part-time, or on a consultant basis.
8.15.1.a.1. A qualified dietitian is one who is registered by the Commission on Dietetic Registration and licensed by the West Virginia Board of Licensed Dietitians; or
8.15.1.a.2. Is qualified as defined by the West Virginia Board of Licensed Dietitians, and is licensed by that board to provide professional nutritional services in West Virginia.
8.15.1.a.3. Consultation shall be based upon the residents’ needs and shall occur at intervals of no less than 37 days and for no less than eight hours.
8.15.1.b. A dietary manager shall be employed if a dietitian is not employed full-time and shall be one of the following:
8.15.1.b.1. A dietetic technician, registered by the Academy of Nutrition and Dietetics;
8.15.1.b.2. A certified dietary manager, as certified by the Association of Nutrition and Foodservice Professionals;
8.15.1.b.3. A graduate of an associate or baccalaureate degree program in foods and nutrition or food service management; or
8.15.1.b.4. A person enrolled in an approved program to become a certified dietary manager within 60 days of accepting responsibility for the position. This person shall successfully complete the program within the specific timeframes outlined by the enrolled program and shall successfully pass the Certified Dietary Manager (CDM) examination within no more than two months of completing the approved program.
8.15.1.c. The dietary manager, under the direction of the dietitian, is responsible for the daily operation of the dietetic service;
8.15.2. Sufficient staff. A nursing home shall employ sufficient support personnel competent to carry out the functions of the dietary service.
8.15.3. Menus and Nutritional Adequacy. A nursing home shall meet the nutritional needs of residents in accordance with the Reference Dietary Intake (RDI) of the Food and Nutrition Board of the National Research Council, National Academy of Sciences.
8.15.4. Food. A nursing home shall provide each resident with:
8.15.4.a. Food prepared by methods that conserve nutritive value, flavor, and appearance;
8.15.4.b. Meals shall be prepared and served the same day;
8.15.4.c. Food that is palatable, attractive, and at the proper temperature;
8.15.4.d. At the time of receipt by the resident, foods shall be at a temperature of no less than 120° F for hot foods and at no more than 50° F for cold foods;
8.15.4.e. Food prepared in a form designed to meet individual needs;
8.15.4.f. Food substitutes of similar nutritive value for food the resident refuses;
8.15.4.g. Food prepared with seasoning, unless contraindicated by a physician’s order; and
8.15.4.h. Iodized salt, if used.
8.15.5. Diets including regular diets. All residents shall have a physician’s order for the specific type of diet he or she is to receive as set forth in the nursing home’s diet manual.
8.15.5.a. Therapeutic and texture modified diets shall be served to residents in accordance with physician’s orders.
8.15.5.b. Nursing personnel shall advise food service in writing of each resident’s diet order, and a copy of the order shall be kept on file for at least one year.
8.15.5.c. Therapeutic Diets. Therapeutic diets shall be prescribed by the attending physician. A current therapeutic diet manual that is not more than five years old and is approved by the dietitian shall be available for nursing personnel and physicians.
8.15.5.d. Recognizing that the resident has the right to refuse medical treatment, all residents have the right to request substitute foods even when this violates the physician’s orders.
8.15.5.d.1. A nursing home shall provide education to the resident regarding the benefits of the prescribed diet and consequences of his or her refusal to eat the prescribed diet.
8.15.5.d.2. A nursing home shall document the informed decision in the resident’s clinical record.
8.15.6. Frequency of meals.
8.15.6.a. A nursing home shall provide at least three meals daily at regular times, or in accordance with residents’ preferences and customary routines.
8.15.6.b. No more than 14 hours shall elapse between a substantial evening meal and breakfast the following day. Breakfast shall not be served before 7:00 a.m., unless by a resident’s request.
8.15.6.c. A nursing home shall offer a nourishing snack at bedtime daily, as determined by the resident’s needs.
8.15.6.c.1. The amount of the snacks consumed by the resident shall be recorded in the resident’s medical record.
8.15.6.c.2. The amount of supplement consumed by the resident shall be recorded in the resident’s medical record.
8.15.7. Sanitary conditions. A nursing home shall:
8.15.7.a. Procure food from sources approved or considered satisfactory by federal, state, or local authorities;
8.15.7.b. Store, prepare, distribute, and serve food under sanitary conditions;
8.15.7.b.1. Hold hot foods at or above 135° F and cold foods at or below 40° F, or the current Food and Drug Administration Food Code located at www.fda.gov.
8.15.7.b.2. Temperatures of foods are taken and documented prior to placement in the hot or cold food holding area.
8.15.7.c. Dispose of garbage and refuse properly.
8.15.8. Emergency supplies.
8.15.8.a. A nursing home shall have a planned three day disaster menu that correlates with the emergency food supply.
8.15.8.b. The emergency food supply shall be maintained on the premises with non-perishable foods and disposable supplies to meet all resident needs for three days.
8.15.8.c. The emergency food supply may be incorporated with the regular stock of food supplies.
8.15.9. A nursing home shall maintain a dietetic service that is organized either directly by a nursing home or through a written agreement with a contractor who complies with the standards of this rule.
8.15.10. The dietetic service shall be in substantial compliance with the Department of Health’s Legislative Rule, Food Establishments, W. Va. Code R. §§64-17-1, et seq.
8.16. Physician and Physician Extender Services.
8.16.1. A physician shall personally approve in writing a recommendation that a person be admitted to a nursing home. Each resident shall remain under the care of a physician.
8.16.2. Physician supervision. A nursing home shall ensure that:
8.16.2.a. The medical care of each resident is supervised by a physician; and
8.16.2.b. Another physician supervises the medical care of residents when their attending physician is unavailable.
8.16.3. Physician visits. The physician shall:
8.16.3.a. Review the resident’s total program of care, including medications and treatments, and examine the resident personally at each visit required under the provisions of this rule;
8.16.3.b. Write, sign, and date progress notes at each visit; and
8.16.3.c. Sign and date all orders.
8.16.4. Frequency of physician visits. The resident shall be seen face-to-face by a physician:
8.16.4.a. Within five days prior to admission or within 72 hours following admission; and
8.16.4.b. At least every 30 days for the first 90 days after admission, and as the resident’s condition warrants. A nursing home shall assure that physician visits occur as clinically indicated for the resident.
8.16.4.c. After the 90 day requirement has expired, the physician shall visit every 60 days and as the resident’s condition warrants.
8.16.5. Except as provided under the provisions of this rule, all required physician visits shall be made by the physician personally.
8.16.6. After the initial visit, at the option of the physician, the required visit every 60 days may be alternated between personal visits by the physician and visits by a physician’s assistant, nurse practitioner, or clinical nurse specialist under the provisions of this rule.
8.16.7. Availability of physicians for emergency care. A nursing home shall provide or arrange for the provision of physician services 24 hours a day, in case of an emergency.
8.16.8. Physician delegation of tasks. Except as specified under the provisions of this rule, a physician may delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist who:
8.16.8.a. Is licensed by the state;
8.16.8.b. Is acting within the scope of practice as defined by W. Va. Code §§30-3-1, et seq.; and
8.16.8.c. Is under the supervision of the physician.
8.17. Specialized Rehabilitative Services.
8.17.1. Provision of services. If specialized rehabilitative services such as, but not limited to, physical therapy, speech-language pathology, occupational therapy, and psychological or psychiatric rehabilitative services, are required in the resident’s comprehensive plan of care, a nursing home shall:
8.17.1.a. Provide the required services; or
8.17.1.b. Obtain the required services from an outside resource, in accordance with subsection 10.7. of this rule, from a provider of specialized rehabilitative services.
8.17.2. Qualifications. Specialized rehabilitative services shall be provided under the written order of a physician by qualified personnel as determined by licensing boards of those personnel.
8.18. Dental Services.
8.18.1. A nursing home shall provide, or obtain from an outside resource in accordance with section 10.7. of this rule, the following dental services to meet the needs of each resident:
8.18.1.a. Routine dental services, to the extent the resident is covered under the State Medicaid Plan; and
8.18.1.b. Emergency dental services 24 hours a day.
8.18.2. A nursing home shall assist a resident in need of dental services by:
8.18.2.a. Making dental appointments;
8.18.2.b. Arranging for transportation to and from the dentist’s office; and
8.18.2.c. Referring residents with lost or damaged dentures to a dentist.
8.19. Pharmacy Services.
8.19.1. A nursing home shall provide routine and emergency drugs and biologicals to its residents, or obtain them under an agreement described under the provisions of this rule.
8.19.2. All drugs shall be provided in conformance with the requirements of federal, state, and local laws, regulations, and rules.
8.19.3. Procedures. A nursing home shall provide pharmaceutical services, including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals, to meet the needs of each resident.
8.19.4. Service consultation. A nursing home shall employ or obtain the services of a licensed pharmacist who:
8.19.4.a. Provides consultation on all aspects of the provision of pharmacy services in the nursing home;
8.19.4.b. Establishes a system of records of receipt and disposition of all controlled drugs in sufficient detail to enable an accurate reconciliation; and
8.19.4.c. Determines that drug records are in order and that an account of all controlled drugs is maintained and periodically reconciled.
8.19.5. Drug regimen review.
8.19.5.a. The drug regimen of each resident shall be reviewed, by a licensed pharmacist, at least every 37 days.
8.19.5.b. The drug regimen review shall include substances that are regarded as herbal products or dietary supplements.
8.19.6. The nursing home shall conduct a drug regimen review by a licensed pharmacist.
8.19.7. The pharmacist shall report any irregularities in the drug regimen review to the attending physician and the director of nursing, who shall act upon these reports.
8.19.8. Labeling of drugs and biologicals. Drugs and biologicals used in the nursing home shall be labeled in accordance with currently accepted professional principles, and include the appropriate accessory and cautionary instructions, with the expiration date when applicable.
8.19.9. Storage of drugs and biologicals.
8.19.9.a. In accordance with state and federal laws, the nursing home shall store all drugs and biologicals in locked compartments under proper temperature controls and permit only authorized personnel to have access to the keys.
8.19.9.b. A nursing home shall provide separately locked, permanently affixed compartments for the storage of controlled drugs listed in Schedule II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 42 U.S.C. § 812, and other drugs subject to abuse, except when the nursing home uses single unit package drug distribution systems in which the quantity stored is minimal and a missing dose can be readily detected.
8.20. Infection Control.
8.20.1. A nursing home shall establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection.
8.20.2. Infection control program. A nursing home shall establish and implement an infection control program under which it:
8.20.2.a. Investigates, controls, and prevents infections in the nursing home;
8.20.2.b. Determines what procedures, such as isolation, shall be applied to a resident and isolates only to the extent that is required to protect the resident and others; and
8.20.2.c. Maintains a record of incidents, investigations, and corrective actions related to infections. The records shall provide for analysis of causal factors and identification of preventative actions to be implemented.
8.20.3. Preventing spread of infection.
8.20.3.a. Policies and Procedures. A nursing home shall establish and implement policies and procedures consistent with current accepted standards of practice regarding the administration of pneumococcal vaccine, influenza vaccine, and screening for tuberculosis.
8.20.3.b. Isolation. When the nursing home staff determines by means of the infection control program that a resident needs isolation to prevent the spread of infection, the nursing home shall isolate the resident or make arrangements to have the resident transferred to a nursing home which can better meet the needs of the resident if the nursing home is unable to provide the required degree of isolation.
8.20.3.c. A resident who is transferred under the provisions of this rule and desires to return to the original nursing home shall be readmitted immediately to the first available bed in a semi-private room when the need for isolation has abated, provided that the resident still requires the care provided by the original nursing home and that nursing home is able to meet the resident’s needs.
8.20.3.d. Employee restrictions. A nursing home shall prohibit employees with a communicable disease or infected skin lesions from direct contact with residents or their food, if direct contact will transmit the disease.
8.20.3.e. Hand-washing. A nursing home shall require staff to wash their hands after each direct resident contact and after engaging in any activity for which hand washing is indicated by accepted standards of professional practice.
8.20.4. Linens. Personnel shall handle, store, process, and transport linens in order to prevent the spread of infection.
8.21. Trauma-informed care. The nursing home shall ensure that residents who are trauma survivors receive culturally competent, trauma-informed care in accordance with professional standards of practice and accounting for residents’ experiences and preferences in order to eliminate or mitigate triggers that may cause re-traumatization of the resident.
8.22. Pain management. The facility must ensure that pain management is provided to residents who require such services, consistent with professional standards of practice, the comprehensive person-centered care plan, and the resident’s goals and preferences.
W. Va. Code R. § 71-15-9 Physical Facilities, Equipment, and Site Information
9.1. Applicability; Construction; Additions; Renovations; Other Standards.
9.1.1. If the director determines that changes necessary for compliance with this section of this rule would create an undue hardship for a nursing home in existence at the time this rule becomes effective, the nursing home may be governed by rules which were in effect prior to the effective date of this rule.
9.1.2. The standards for construction, renovations, and alterations are the relevant sections of the latest edition of “The Guidelines for Design and Construction of Hospitals and Health Care Facilities,” according to Facilities Guidelines Institute (FGI) and published by the American Society for Healthcare Engineering (ASHE) with assistance from the U.S. Department of Health and Human Services which can be located at www.hhs.gov.
9.1.3. A nursing home shall comply with the most current edition of the National Fire Protection Association (NFPA) of “NFPA 99 Standards for Health Care Facilities” as adopted by the Centers for Medicare and Medicaid Services (CMS).
9.1.4. A nursing home shall comply with the current edition of the state building code as adopted by the State Fire Marshal.
9.1.5. A nursing home shall comply with all applicable provisions of the Americans with Disabilities Act (ADA).
9.1.6. A nursing home shall submit a complete set of architectural, structural, and mechanical drawings, drawn to scale not less than one-eighth inch equals one foot, and shall be approved by the director before construction begins. This requirement applies to new construction, additions, renovations, or alterations to existing nursing homes.
9.1.7. The submitted drawings and specifications shall be prepared, signed, and sealed by a person registered to practice architecture in the state of West Virginia. The project shall be inspected during the construction phase by a registered professional architect or his or her representative.
9.1.8. The requirement for a registered architect may be waived by the director depending on the scope of the project.
9.1.9. A nursing home shall submit complete architectural drawings and specifications for any alterations, renovations, and equipment modifications or additions which may necessitate changes to the nursing home floor plan, impact on safety, or require the services of a design professional, and shall be approved by the director prior to beginning any construction.
9.1.10. Minor renovations that do not alter floor plans, impact on safety or require the services of a design professional may not require approval of the director.
9.1.11. A performance statement shall be obtained by the owner from the building and design professional of a proposed nursing home stating that in constructing the nursing home the builder has followed the plans which are on file with and approved by the director.
9.1.12. All new facilities, additions, and alterations shall be inspected by the director and shall have the director’s approval in writing prior to admitting residents. A nursing home shall request in writing a pre-opening inspection no less than 30 days prior to the proposed opening date.
9.1.13. All fees specified in the Department of Health’s Legislative Rule, Fees for Services, W. Va. Code R. §§64-51-1, et seq., for site inspections of new construction or major renovations, architectural review of drawings and specifications, and inspections of new projects prior to opening are the responsibility of the nursing home or design professional.
9.1.14. Unless substantial construction is started within one year of the date of approval of final drawings, the owner or architect shall secure written notification from the director that the plan approval for construction is still valid and in compliance with this rule.
9.2. Site Characteristics and Accessibility.
9.2.1. Sites for all new nursing homes and sites for additions to existing nursing homes shall be inspected by the director prior to site development and the completion of final drawings ad specifications.
9.2.2. The site shall be located in an environment that is free from flooding and excessive noise sources such as railroads, freight yards, traffic arteries, and airports. The site shall not be exposed to excessive smoke, foul odors, or dust.
9.2.3. The site shall have good drainage, approved sewage disposal, an approved potable water supply, electricity, telephone, and other necessary utilities available on or near the site.
9.2.4. The site shall be accessible to physicians, emergency services, and other necessary services.
9.2.5. Accessibility and transportation to the site and the nursing home shall be facilitated by paved, hard surfaced, all weather roads, which are kept passable at all times.
9.2.5.a. The road shall connect directly to a paved hard surface highway.
9.2.5.b. Grades to all sites shall permit access for emergency vehicles and firefighting equipment in all weather conditions.
9.2.6. Parking areas shall be sufficient according to latest edition of the Guidelines for Design and Construction of Health Care Facilities according to the Facilities Guidelines Institute (FGI) and published by the American Society for Healthcare Engineering (ASHE) which can be located at www.ashe.org.
9.2.7. Hard surface walks, a minimum of 48 inches wide with a slip resistant surface, shall be provided at all entries and exits, and connect into the main walk or parking area.
9.2.8. Soil conditions shall be reviewed as necessary by a qualified soils engineer and if conditions require, earth core boring shall be conducted. The design professional shall supply the director with copies of soil test reports if engineered fill is installed or if other soil tests are conducted.
9.2.9. Local building codes and zoning restrictions shall be followed. The owner, or his or her designee, shall maintain documentation certifying compliance signed by local fire, building, and zoning officials, and this documentation shall be available for review.
9.3. Increase in Bed Capacity. Bed capacity may be increased after the director has determined that the nursing home physical facilities will support the increase and there is compliance with other requirements including certificate of need requirements.
9.4. Equipment and Furnishings in Resident Rooms.
9.4.1. A nursing home shall provide each resident with a bed that accommodates his or her individual needs.
9.4.2. A nursing home shall provide each resident with a night stand that has a drawer for toilet articles and utensils.
9.4.3. The nursing home shall provide a chair for each resident that accommodates the resident’s individual needs.
9.4.4. The nursing home shall provide each resident with reasonable closet and drawer space for clothing and personal items. Shelves and drawers shall be positioned at a height that accommodates the needs of the individual resident.
9.4.5. Nursing home shall provide cubicle curtains or other physical barriers that assure visual privacy for each resident.
9.4.6. A nursing home shall provide window dressings and curtains or draperies, maintained in good condition.
9.4.7. The provisions of this subsection shall be liberally construed to allow the nursing home to provide reasonable accommodations in accordance with the individual needs and preferences of each resident.
9.5. Laundry and Linens.
9.5.1. A nursing home shall have written procedures for handling, storing, processing, and transporting linens and other laundered goods in a manner to prevent the spread of infection.
9.5.2. A nursing home shall provide at least one clean, comfortable pillow for each bed and additional pillows shall be available.
9.5.3. A nursing home shall provide clean waterproof mattress or mattress covers that are non-absorbent.
9.5.4. Sufficient supplies of linens shall be available to nursing personnel to assure the cleanliness and comfort of each resident.
9.5.5. The nursing home shall provide each resident with individual towels, wash cloths, and blankets.
9.5.6. When electric blankets are used, they shall be UL approved and checked periodically by the nursing home’s staff for safety.
9.6. Nursing Equipment and Sterile Supplies.
9.6.1. A nursing home shall have the sufficient quantity and type of nursing equipment to meet the individual care needs for each resident.
9.6.2. All electrical resident care equipment shall be maintained, inspected and tested in accordance with the manufacture recommendations, and the applicable sections of the “National Fire Protection Association NFPA 99 Standard for Health Care Facilities”.
9.6.3. All non-electrical equipment used for inhalation therapy (oxygen) shall be stored and maintained in accordance with the applicable sections of the “National Fire Protection Association NFPA 99 Standard for Health Care Facilities.”
9.6.4. If a nursing home provides electrical life support services, all electrical equipment used to sustain life shall be connected to an emergency generator, through a critical branch electrical system. The generator and all critical branch electrical circuits shall comply with the standards as identified in the “National Fire Protection Association NFPA 99 Standard for Health Care Facilities.”
9.6.5. All equipment shall be maintained in accordance with the provisions of this rule.
9.6.6. Clean nursing equipment and sterile supplies shall be stored in a clean work room or storeroom that does not permit resident contact.
9.6.7. Sterile supplies shall not be stored under sink drains, in soiled utility rooms or in areas where contamination may occur.
9.6.8. Sterile supplies shall not be stored nor used beyond their dated shelf life.
9.6.9. Damaged supplies and utensils shall not be used.
9.7. General Maintenance and Housekeeping.
9.7.1. A nursing home shall be constructed, maintained, and equipped to protect the health and safety of residents, personnel, and the public.
9.7.2. All new nursing homes shall establish and maintain the nursing home and equipment in accordance with the most recent edition of the Guidelines for Design and Construction of Hospitals and Health Care Facilities. All new nursing homes shall establish and maintain the nursing home and equipment in accordance with the most recent edition of the Guidelines for Design and Construction of Hospitals and Health Care Facilities.
9.7.3. A nursing home shall establish and implement a maintenance program that assures that:
9.7.3.a. All equipment is operable in a safe working condition;
9.7.3.b. The interior and exterior of the building is safe; and
9.7.3.c. The grounds are maintained in a presentable condition free from rubbish and other health hazards of a similar nature.
9.7.4. A nursing home shall establish and implement a housekeeping program and services that assures a clean, sanitary environment.
9.7.5. A nursing home shall provide a comfortable, home-like environment for residents.
9.7.6. A nursing home shall be kept free of insects, rodents, and vermin by an effective pest control program.
9.7.7. Pesticides shall be applied only by an applicator certified by the West Virginia Department of Agriculture or a registered technician operating under the supervision of a certified applicator.
9.7.8. A nursing home shall have sufficient supplies for housekeeping and maintenance properly stored and conveniently located to permit frequent cleaning of floors, walls, woodwork, windows, and screens, and to facilitate building and grounds maintenance.
9.8. Solid Waste and Bio-Hazard Waste Disposal.
9.8.1. A nursing home shall have procedures and contracts for disposing of bio-hazardous waste. Chain of custody receipts and forms shall be maintained by the nursing home for one year.
9.8.2. A nursing home shall have procedures for disposing of non-hazardous, medical waste and similar waste that is not considered hazardous in a safe sanitary manner.
9.8.3. Solid waste, including garbage and refuse, shall be removed from the building daily or more often as necessary.
9.8.4. All garbage and refuse shall be stored in durable, covered, leak-proof, and vermin-proof containers or dumpsters. The containers and dumpsters shall be kept clean of all residue accumulation.
9.8.5. All garbage and refuse shall be disposed of in accordance with the applicable provisions of state and local law and rules governing the management of garbage and refuse.
9.9. Water Supply.
9.9.1. A nursing home shall have a water supply that is safe and of sufficient capacity to meet the residents’ needs and the requirements of the sprinkler system.
9.9.2. A nursing home shall have as its source of water a public water system that complies with West Virginia Department of Health’s Legislative Rule, Public Water Systems, W. Va. Code R. §§64-3-1-, et seq., or a water well that complies with West Virginia Department of Health’s Legislative Rules, Water Well Regulations, W. Va. Code R. §§64-19-1, et seq., and Water Well Design Standards, W. Va. Code R. §§64-46-1, et seq.
9.9.3. A nursing home shall have hot and cold running water in sufficient supply to meet the needs of the residents.
9.9.4. Hot water distribution systems serving resident care areas shall be recirculating to provide continuous hot water at each hot water outlet. The temperatures shall be appropriate for comfortable use but shall not exceed 110 degrees.
9.9.5. A nursing home shall have written agreements with water suppliers to deliver water when there is a loss of the normal supply.
9.10. Sewage Disposal.
9.10.1. Sewage disposal shall be in accordance with West Virginia Department of Health’s Legislative Rules, Sewage Systems, Sewage Treatment Systems, and Sewage Tank Cleaners, W. Va. Code R. §§64-9-1, et seq., and Sewage Treatment and Collection System Design Standards, W. Va. Code R. §§64-47-1, et seq.
9.10.2. The sewage system shall be adequate to meet the nursing home’s needs.
9.10.3. Sewage systems shall be kept in good working order and shall be properly operated and maintained.
9.11. Fire Safety, Disaster, and Emergency Preparedness.
9.11.1. A nursing home shall provide evidence of compliance with applicable rules of the State Fire Commission. Any variation to compliance with the fire code shall be coordinated with the department and approved in writing by the State Fire Marshal.
9.11.2. A nursing home shall have a written internal and external disaster and emergency preparedness plan approved by the director that sets forth procedures to be followed in the event of an internal or external disaster or emergency that could severely affect the operation of the nursing home.
9.11.3. The disaster and emergency preparedness plan shall have procedures to be followed in the event of the following: fire, missing resident, high winds, tornadoes, bomb threats, utility failure, flood, and severe winter weather.
9.11.4. The disaster and emergency preparedness plan shall include at least an alternate shelter agreement, an emergency transportation policy, and an emergency food supply list and menu that will provide nutrition for all persons residing in the nursing home for a minimum of 72 hours.
9.11.5. The disaster and emergency preparedness plan shall be developed and maintained with the assistance of qualified fire safety and other emergency response teams.
9.11.6. There shall be copies of the disaster and emergency preparedness plan at all staff stations or emergency control stations. The disaster and emergency preparedness plan shall be located in an area that allows visual contact at all times. The nursing home staff shall know the location of the plan at all times.
9.11.7. The local fire department shall be provided with a floor and disaster plan and be given opportunities to become familiar with the nursing home.
9.11.8. A nursing home shall have a written plan and procedures for transferring casualties and uninjured residents. These procedures shall include the transfer of pertinent resident records including identification information, diagnoses, allergies, advance directives, medications and treatments, and other records needed to ensure continuity of care.
9.11.9. A nursing home shall have written instructions regarding the location and use of alarm systems, signals, and firefighting equipment.
9.11.10. A nursing home shall have information regarding methods of fire containment.
9.11.11. A nursing home shall have written instructions regarding accessibility for evacuation routes.
9.11.12. The disaster and emergency preparedness plan shall be reviewed and updated by the administrator or his or her designee on an annual basis and signed and dated by the administrator or his or her designee to verify the plan was reviewed.
9.11.13. Emergency call information shall be conspicuously posted near each telephone in the nursing home, exclusive of telephones in resident rooms. This information shall include at least the following:
9.11.13.a. The telephone numbers of the fire department, the police, ambulance service, and other appropriate emergency services; and
9.11.13.b. Key personnel telephone numbers, including at least the following:
9.11.13.b.1. The administrator;
9.11.13.b.2. The director of nursing or nurse on call;
9.11.13.b.3. The maintenance director or safety director;
9.11.13.b.4. The physician on call; and
9.11.13.b.5. Other appropriate personnel.
9.11.14. A nursing home shall have at least one telephone or one extension on each resident occupied unit and additional telephones and extensions if needed, that do not require any form of payment to operate, to summon help in case of an emergency.
9.11.15. A nursing home shall provide an area of sufficient space too hold the congregate population of the nursing home with a heat source that is supplied with emergency electrical power from the emergency power source.
9.12. Disaster Training.
9.12.1. A nursing home shall operate an internal disaster preparedness program that includes orientation and ongoing training and drills in procedures and specific assignments.
9.12.2. The internal disaster plan shall be rehearsed at least annually.
9.12.3. Fire drills shall be held at least quarterly for each shift.
9.12.4. Disaster Rehearsal and Fire Drill Reports. A nursing home shall keep on file for at least two years, a dated written report and an evaluation of each disaster rehearsal and fire drill conducted on the premises.
9.13. Animals. Any nursing home where animals visit or are boarded shall have policies that assure the general well-being of residents as approved by the director. The policies shall comply with local health ordinances.
W. Va. Code R. § 71-15-10 Administration and Human Resources
10.1. A nursing home shall be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.
10.2. Licensure.
10.2.1. A nursing home shall be licensed under the provisions of this rule.
10.2.2. A nursing home shall operate and provide services in compliance with all applicable federal, state, and local laws, rules, and codes and with accepted professional standards and principles that apply to professionals providing services in a nursing home.
10.3. Governing Body.
10.3.1. A nursing home shall have a governing body.
10.3.2. The governing body shall adopt and enforce rules governing the health care and safety of residents, the protection of their personal and property rights, and the operation of the nursing home.
10.3.3. The governing body shall develop a written nursing home plan that will be reviewed annually. In addition to the other requirements described in law and in this rule, the nursing home plan shall include:
10.3.3.a. An annual operating budget, including all anticipated income and expenses; and
10.3.3.b. A capital expenditure plan for at least a three year period.
10.3.4. The governing body shall assure the development and maintenance of written policies and procedures that govern the services the nursing home provides.
10.3.4.a. The policies and procedures shall include at a minimum all policies and procedures required by this rule.
10.3.4.b. A copy of each written policy and procedure shall be available for inspection on request by the nursing home’s staff and residents and by members of the public.
10.4. Professional Staff. A nursing home shall employ on a full-time, part-time, or consultant basis those professionals necessary to carry out the provisions of this rule.
10.4.1. A consultant, contractor, volunteer, caregivers who provide care services to residents on behalf of the nursing home, students in the nursing home’s nurse aide training program, and students from affiliated academic institutions shall comply with the guidance with as provided in the most current versions of the Center for Medicare and Medicaid Services State Operations Manual Appendix PP and federal regulations and guidelines for infection prevention and control; and the provisions of section 10.6. of this rule.
10.5. Professional Qualifications. Professional staff shall be licensed, certified, or registered in accordance with applicable laws.
10.6. Criminal Background Checks.
10.6.1. All direct access personnel, as defined in W. Va. Code §§16B-15-1, et seq., of a nursing home shall be subject to the provisions of the West Virginia Clearance for Access: Registry and Employment Screening Act, W. Va. Code §§16B-15-1, et seq., and W. Va. Code R. §§71-11-1, et seq.
10.6.2. All direct access personnel, as defined in W. Va. Code §§16-49-1, et seq., of a nursing home shall have received an eligibility fitness determination or variance from the West Virginia Clearance for Access: Registry and Employment Screening.
10.6.3. The nursing home shall maintain documentation that each direct access personnel, as defined in W. Va. Code §§16B-15-1, et seq., has received an eligibility fitness determination or variance from the West Virginia Clearance for Access: Registry and Employment Screening.
10.7. Use of Outside Resources.
10.7.1. If a nursing home does not employ a qualified professional person to furnish a specific service to be provided by the nursing home, the nursing home shall have that service furnished to residents by a person or agency outside the nursing home under an arrangement or an agreement as described in 42 U.S.C. § 1395x(w) or an agreement as described within this rule, and services shall meet the ongoing identified needs of residents to ensure implementation of the plan of care and to avoid unnecessary duplication of services.
10.7.2. Under arrangements as described in 42 U.S.C. § 1395x(w) or written agreements pertaining to services furnished by outside resources, the nursing home is responsible for the following:
10.7.2.a. Obtaining services that meet professional standards and principles that apply to professionals providing services in a nursing home; and
10.7.2.b. The timeliness of the services.
10.8. Staff Development.
10.8.1. All personnel shall attend and participate in regularly scheduled in-service training programs developed for the staff by either nursing home personnel or outside resources. The purpose of the in-service program shall be to:
10.8.1.a. Plan and organize a system of training that begins with an orientation program and continues throughout employment with scheduled in-service training programs;
10.8.1.b. Develop in each employee an awareness of his or her abilities and limitations in providing care for residents; and
10.8.1.c. Develop the abilities of each employee by an in-depth review of operational policies and procedures, instruction of methods, and procedures to follow in implementing assigned duties as it relates to a specific job description, and to provide current information that will assist in providing quality care.
10.8.2. A nursing home shall maintain records of attendance, and if absences occur shall schedule a make-up class to be completed.
10.8.3. A nursing home shall complete a performance review of every employee at least once every 12 months and provide regular in-service education based on the outcome of these reviews. The in-service training shall:
10.8.3.a. Be sufficient to ensure the continuing competence of registered nurse aides, but shall be no less than 12 hours per year;
10.8.3.b. Address areas of weakness as determined in the employee’s evaluation and may address the special needs of residents as determined by the nursing home staff;
10.8.3.c. For nursing staff providing services to residents with cognitive impairments, also address the care of the cognitively impaired; and
10.8.3.d. Include in-service instruction to all personnel on the following:
10.8.3.d.1. The problems and needs of the aged, ill, and disabled;
10.8.3.d.2. The prevention and control of infections;
10.8.3.d.3. Disaster preparedness and fire and safety rules;
10.8.3.d.4. Accident prevention;
10.8.3.d.5. Confidentiality of resident information;
10.8.3.d.6. Protection of a resident’s privacy and personal property rights, and dignity and protection of residents’ rights; and
10.8.3.d.7. Complaint procedures, abuse, neglect, and misappropriation of personal property.
10.8.3.e. The nursing home shall provide training to all new employees, staff, and independent health contractors used by the nursing home, within 30 days of employment or the next regularly scheduled orientation program, whichever occurs first, on Alzheimer’s disease and other dementias. The training shall be a minimum of two hours in duration and shall include all of the following: a basic explanation of how the disease process affects persons with Alzheimer’s disease and other dementias, communication approaches and techniques for use when interacting with persons with Alzheimer’s disease or other dementias, prevention and management of problem behaviors, and activities and programming appropriate for these individuals.
10.8.3.f. The nursing home shall provide training on Alzheimer’s disease and other dementias to all employees, staff, and independent health contractors used by the nursing home each calendar year. The training shall be a minimum of two hours in duration and shall include all of the following: a basic explanation of how the disease process affects persons with Alzheimer’s disease and other dementias, communication approaches and techniques for use when interacting with persons with Alzheimer’s disease or other dementias, prevention and management of problem behaviors, and activities and programming appropriate for these individuals.
10.9. Personnel Records. A nursing home shall maintain a confidential personnel record for each employee containing the following information:
10.9.1. A dated application;
10.9.2. Reference verification;
10.9.3. Results indicating a satisfactory health status for the employees’ current job assignment as required within the provisions of this rule;
10.9.4. Evaluations of work performance;
10.9.5. Current license, registration, or certification status if applicable to the job;
10.9.6. A summary of each employee’s in-service training for the previous two years;
10.9.7. Any nursing home specific required forms;
10.9.8. A job description signed by the employee; and
10.9.9. Records required to be retained for criminal background checks as defined by the provisions of this rule.
10.10. Medical Director. A nursing home shall designate, in writing, a physician accountable to the governing body to serve as medical director to ensure that medical care provided to residents is adequate and appropriate. The medical director is responsible for:
10.10.1. Reviewing policies, procedures, and guidelines to ensure adequate, comprehensive services;
10.10.2. Coordinating medical care provided, including the attending physician, in the nursing home so it is adequate and appropriate;
10.10.3. Assisting in the evaluation of credentialing and re-credentialing of licensed independent practitioners, physicians’ assistants and nurse practitioners to determine whether they will be authorized to practice within the organization by recommendation;
10.10.4. Approving in-service training programs;
10.10.5. Reviewing and evaluating incident reports or summaries of incident reports, identifying hazards to health and safety, and making recommendations as needed; and
10.10.6. Providing or arranging for medical coverage of residents who do not have an attending physician.
W. Va. Code R. § 71-15-11 Laboratory, Radiology, and Other Diagnostic Services
11.1. Laboratory Services.
11.1.1. A nursing home shall provide or obtain laboratory services to meet the needs of its residents. The nursing home is responsible for the timeliness of the services.
11.1.2. If a nursing home provides its own laboratory services, the services shall meet the requirements in the federal regulation, 42 CFR Part 493.
11.1.3. If a nursing home arranges for outside laboratory services, the nursing home shall ensure that the laboratory services meet the requirements in the federal regulation, 42 CFR Part 493.
11.1.4. If a nursing home provides blood bank and transfusion services, the nursing home shall ensure that the services are federally certified in the appropriate specialties and sub-specialties of services in accordance with the requirements to which it is subject.
11.1.5. A nursing home shall:
11.1.5.a. Provide or obtain laboratory services only when ordered by a physician;
11.1.5.b. The facility must promptly notify the ordering physician, physician assistant, nurse practitioner, or clinical nurse specialist of laboratory results that fall outside of clinical reference ranges in accordance with facility policies and procedures for notification of a practitioner or per the ordering physician’s orders;
11.1.5.c. Assist the resident in making transportation arrangements to and from the source of service, if the resident needs assistance; and
11.1.5.d. File laboratory reports in the resident’s clinical record that are dated and contain the name and address of the testing laboratory.
11.2. Radiology and Other Diagnostic Services.
11.2.1. A nursing home shall provide or obtain radiology and other diagnostic services to meet the needs of its residents. The nursing home is responsible for the timeliness of the services.
11.2.2. If a nursing home provides its own diagnostic services, the services shall meet the applicable licensing and certification requirements established for those services.
11.2.3. If a nursing home does not provide its own diagnostic services, it shall have an agreement to obtain these services from a provider or supplier that meets all applicable licensing and certification requirements established for those services.
11.2.4. A nursing home shall:
11.2.4.a. Provide or obtain radiology and other diagnostic services only when ordered by the attending physician;
11.2.4.b. Promptly notify the ordering physician, physician assistant, nurse practitioner, or clinical nurse specialist of results that fall outside of clinical reference ranges in accordance with facility policies and procedures for notification of a practitioner or per the ordering physician’s orders;
11.2.4.c. Assist the resident in making transportation arrangements to and from the source of service, if the resident needs assistance; and
11.2.4.d. File in the resident’s clinical record signed and dated reports of x-ray and other diagnostic services, with the name and address of the provider of the service.
W. Va. Code R. § 71-15-12 Clinical Records
12.1. Records Maintenance and Retention.
12.1.1. A nursing home shall maintain clinical records on each resident in accordance with accepted professional standards and practices that are:
12.1.1.a. Complete;
12.1.1.b. Accurately documented;
12.1.1.c. Readily accessible; and
12.1.1.d. Systematically organized.
12.1.2. All of a resident’s clinical records shall be retained for the longer of the following time periods:
12.1.2.a. Five years from the date of discharge or death; or
12.1.2.b. For a minor, three years after a resident reaches 18 years of age.
12.1.3. A nursing home shall safeguard clinical record information against loss, destruction, or unauthorized use.
12.1.4. A nursing home shall ensure that each clinical record contains a photograph of the resident, unless the resident objects.
12.2. Confidentiality. A nursing home shall keep all information contained in the resident’s clinical record confidential, unless the resident, or applicable legal representative, authorizes disclosure or when release is required by:
12.2.1. Transfer to another health care institution;
12.2.2. Law;
12.2.3. Third party payment contract; or
12.2.4. The resident.
12.3. Contents. The clinical record shall contain:
12.3.1. Sufficient information to identify the resident;
12.3.2. All the resident’s assessments;
12.3.3. The resident’s plan of care and services provided;
12.3.4. The results of any pre-admission screening conducted by the state;
12.3.5. Progress notes;
12.3.6. Physician orders; and
12.3.7. Documents describing the authority of any legal representative.
W. Va. Code R. § 71-15-13 Quality Assessment and Assurance
13.1. Quality Improvement Committee.
13.1.1. A nursing home shall maintain a quality improvement and assessment committee consisting of:
13.1.1.a. The director of nursing services;
13.1.1.b. The medical director; and
13.1.1.c. At least three other members of the nursing home’s staff.
13.1.2. The quality improvement and assessment committee shall:
13.1.2.a. Meet at least quarterly to identify issues of quality assessment and improvement activities;
13.1.2.b. Develop and implement appropriate plans of action to correct identified quality deficiencies;
13.1.2.c. Continuously measure, assess, and improve all important resident care and nursing home functions;
13.1.2.d. Collect and review outcome data and use it to systematically benchmark the level of quality with that of other extended care providers; and
13.1.2.e. Collect and review resident satisfaction.
13.2. Disclosure of Records. The administrator may not require disclosure of the quality improvement committee records, insofar as the disclosure is related to the compliance with the requirements of this section.
13.3. Sanctions. The Director shall not use good faith attempts as documented by a nursing home’s committee to identify and correct areas of concern or deficiencies as a basis for citing a new deficiency or as a basis for sanctions.
W. Va. Code R. § 71-15-14 Inspections and Investigations
14.1. Regular Inspections.
14.1.1. The director shall make or cause to be made inspections by his or her authorized representatives as necessary to carry out the intent of W. Va. Code §§16B-4-1, et seq., and this rule.
14.1.2. All licensed nursing homes shall be inspected annually, or in accordance with the provisions of this rule, to determine the nursing homes’ compliance with applicable statutes and rules. Nursing homes with the greatest number of deficiencies shall be investigated with greater frequency as determined by the director.
14.1.3. The director shall provide a nursing home with a written description of its deficiencies within ten working days of the last day of the inspection.
14.2. Complaint Investigation.
14.2.1. Any person may register a complaint with the director alleging violation of applicable statutes and rules by a nursing home. Nursing homes with the greatest number of deficiencies shall be investigated with greater frequency as determined by the director.
14.2.2. A complaint that the director determines is willfully intended to harass a nursing home or is without any reasonable basis shall not be investigated. The director shall notify a complainant presenting a complaint determined either as intended to harass a nursing home or as without reasonable basis that no further investigation will be conducted.
14.2.3. The director shall conduct an unannounced inspection of the nursing home to determine the validity of the complaint. The director shall provide the nursing home with general notice of the substance of the complaint only at the time of the inspection.
14.2.4. The director shall conduct other investigations necessary to determine the validity of the complaint.
14.2.5. No later than 20 working days after investigating and completing a complaint, the director shall notify the complainant and the nursing home in writing of the results of the investigation.
14.2.6. The names of a complainant or of any person named in a complaint shall not be disclosed by the department without that person’s written authorization. If a complaint becomes the subject of a judicial proceeding, nothing in this section shall be construed to restrict disclosure of information that would otherwise be disclosed in a judicial proceeding.
14.2.7. Before any complaint is disclosed to a nursing home or the public pursuant to the provisions of this rule, the director shall redact any information in the complaint that could reasonably identify the complainant or a resident.
14.2.8. A director shall make investigations of complaints involving immediate jeopardy to resident health or safety within 24 hours of the date of receipt of the complaint.
14.2.8.a. A director shall make investigations of complaints involving harm that does not present immediate jeopardy, within ten days of the date of the complaint.
14.2.8.b. A director shall make investigations of complaints involving no harm, but with potential for greater than minimal harm, that are not immediate jeopardy, within 45 days of the date of the complaint.
14.2.8.c. A director shall make investigations of complaints involving no harm with potential for minimal harm and all other complaints at the time of the next inspection.
14.2.9. If within 120 days of an inspection or a complaint investigation, a nursing home fails to comply with the requirements of this rule, the director shall inform all residents of the nursing home’s non-compliance.
14.2.9.a. If the non-compliance results in an action against the license of the nursing home, the director shall notify residents of the time period during which residents may relocate if they wish prior to the deficient nursing home being reported to the Social Security Administration if the nursing home is certified under the Medicare or Medicaid programs.
14.2.9.b. The director shall provide all residents with a list of nursing homes and agencies to assist them in moving if they wish to relocate.
14.2.10. Upon written request, any person shall have the right to request the most recent and past state and federal inspection and complaint reports with the nursing home’s plan of correction. The director shall treat any inspection or complaint report as public information from the time an acceptable plan of correction is submitted. Before releasing an inspection or complaint report considered to be public information, the director shall delete any confidential information regarding a resident that reasonably permits identification of the resident. The director shall make copies of all inspection reports available to the State Long-Term Care Ombudsman, the local office of adult protective services, and the Social Security regional offices.
14.2.11. Within 210 days of an inspection or complaint investigation after which deficiencies are not timely corrected, the director shall send the name and address of the deficient nursing home to the appropriate regional office of the Social Security Administration and identify it as a deficient nursing home.
14.2.12. The director shall provide the State Long-Term Care Ombudsman with the following within 90 days:
14.2.12.a. A statement of deficiencies reflecting nursing home noncompliance; and
14.2.12.b. Reports of adverse actions imposed on a nursing home.
14.3. Dispute Resolution. The director shall offer a nursing home an opportunity for an informal dispute resolution process and an independent informal dispute resolution process so a nursing home may contest a cited deficiency.
14.3.1. Informal Dispute Resolution.
14.3.1.a. Documentation for an informal dispute resolution shall be submitted with, but separate from, the plan of correction for existing deficiencies.
14.3.1.b. The request for an informal dispute resolution shall be submitted at the time the plan of correction is submitted for existing deficiencies.
14.3.1.c. The director shall write policy and procedures addressing the manner in which an informal dispute resolution shall be conducted.
14.3.1.d. The policy and procedures for an informal dispute shall be available to the public upon written request.
14.3.1.e. If the director fails to complete an informal dispute resolution in a timely manner, it does not delay the effective date of any enforcement action against the nursing home.
14.3.1.f. If during the informal dispute resolution process a nursing home is successful in demonstrating that deficiencies should not have been cited, the director shall remove the deficiencies from the statement of deficiencies and rescind any enforcement action imposed solely as a result of those cited deficiencies.
14.3.1.g. All communications during an informal dispute resolution are confidential and cannot be used by or against the license or the director in the event a formal hearing takes place.
14.3.2. Independent Informal Dispute Resolution. The independent informal dispute resolution process shall be implemented as defined in W. Va. Code §§16B-4-1 , et seq.
W. Va. Code R. § 71-15-15 Enforcement and Due Process
15.1. Enforcement. Director’s Powers, Duties, and Rights. The director, in consultation with the Inspector General, may invoke penalties against a nursing home violating the provisions of this rule in accordance with the provisions of this rule.
15.2. Enforcement Generally. The director, in consultation with the Inspector General, may assess civil penalties, and may suspend, revoke, or deny renewal of the license of a nursing home for cause after notice as required by this rule and the provisions of W. Va. Code §§16B-4-1, et seq., or take any other action contemplated by this rule. Cause may include one or more of the following:
15.2.1. Failure to provide standard quality of care for residents;
15.2.2. Willfully and knowingly falsifying the material content of resident assessments;
15.2.3. Failure to submit a plan of correction required by W. Va. Code §§16B-4-1, et seq.;
15.2.4. Failure to submit a plan of correction that is approved by the director;
15.2.5. Failure to correct deficiencies within the time frame specified in an approved plan of correction;
15.2.6. Repeat noncompliance within the same regulatory grouping as defined in this rule;
15.2.7. Failure to cooperate with or interference with the director or an authorized representative of the director in the inspection of the nursing home;
15.2.8. Failure to comply with this rule;
15.2.9. Violation of any provision of this rule that produces immediate jeopardy to the health or safety of residents;
15.2.10. Violation of the provisions of this rule relative to the discharge of residents or employees because of complaints against the nursing home;
15.2.11. Use of subterfuge or other dishonest action in applying for an original or renewal license;
15.2.12. Use of subterfuge or other dishonest action in obtaining the time, date, and location of any inspection;
15.2.13. Abuse of residents;
15.2.14. Neglect of residents;
15.2.15. Misappropriation of residents’ property; or
15.2.16. Attempted bribery of any employee or contracted person of the department.
15.3. Formal Hearings and Due Process for Actions of Enforcement.
15.3.1. All formal hearings shall be conducted pursuant to Office of Inspector General’s Procedural Rule, Rules for Hearings Under the Administrative Procedures Act, W. Va. Code R. §§69-1-1, et seq.
15.3.2. An applicant for a license or a licensee or any other person aggrieved by an order or other action by the director pursuant to this rule or to W. Va. Code §§16B-4-1, et seq., shall have the opportunity for a formal hearing by the director, upon written request to the director in a manner prescribed in Office of Inspector General’s Procedural Rule, Rules for Hearings Under the Administrative Procedures Act, W. Va. Code R. §§69-1-1, et seq.
15.3.3. A formal hearing pursuant to this rule shall be conducted in accordance with the pertinent provisions of W. Va. Code §§29A-4-1, et seq., and §§29A-5-1, et seq.
15.3.4. A nursing home may request a formal hearing and seek judicial review pursuant to W. Va. Code §16B-4-12 and §16B-4-13 to contest the deficiencies issued by the director, irrespective of whether the deficiency results in the imposition of civil money penalty.
15.3.4.a. The director shall begin an enforcement action to ensure compliance with W. Va. Code §§16B-4-1, et seq., or any rule or order issued thereunder, whenever the director determines that any person:
15.3.4.a.1. Has engaged in, or is engaging in, an act or practice in violation of W. Va. Code §§16B-4-1, et seq., or any rule or order; or
15.3.4.a.2. When it appears to the director that any person has aided, abetted, or caused, or is aiding, abetting, or causing such an act or practice; or
15.3.4.a.3. That no action is being taken under federal regulation or that the action does not adequately protect the residents’ health or safety.
15.3.4.b. The director shall impose one or more of the following remedies:
15.3.4.b.1. License termination;
15.3.4.b.2. Reduction of bed capacity;
15.3.4.b.3. Ban on new admissions;
15.3.4.b.4. Temporary management;
15.3.4.b.5. Civil money penalties; or
15.3.4.b.6. Closure of the nursing home in emergency situations, transfer of residents, or both.
15.3.5. A nursing home may not avoid cited deficiencies or enforcement actions because it has undergone a change of ownership.
15.4. Ban on New Admissions and Reduction in Licensed Bed Capacity.
15.4.1. The director shall by order place a ban on new admissions, reduce the licensed bed capacity of a nursing home, or both, when on the basis of inspection he or she makes the following findings:
15.4.1.a. The licensee is not providing adequate care under the nursing home’s existing bed capacity; and
15.4.1.b. A reduction in licensed bed capacity, a ban on new admissions, or both, would place the nursing home in a position to render adequate care.
15.4.2. A reduction in licensed bed capacity, a ban on new admissions, or both remains in effect until the nursing home is determined by the director to be in substantial compliance with this rule.
15.4.3. If the residents of the nursing home are in immediate jeopardy regarding their health, safety, welfare, or rights, the director may seek an order to transfer residents out of the nursing home as provided for under the provisions of this rule.
15.4.4. Any notice to a licensee of reduction in licensed bed capacity or a ban on new admissions shall include the terms of the order, the reasons for the order and a date set for compliance.
15.5. Revocation or Suspension of License.
15.5.1. If the director suspends a nursing home’s license, he or she shall also specify the conditions giving rise to the suspension that are to be corrected by the licensee during the period of suspension to entitle the licensee to apply for reinstatement of his or her license. If the director revokes a license, he or she may stay the effective date of the revocation by not more than 90 days upon a showing that the stay is necessary to assure appropriate placement of residents.
15.5.2. The director’s order is final unless vacated or modified by court order.
15.6. Immediate Jeopardy or Repeat Deficiency.
15.6.1. The director may enforce this rule, administratively or in court, without first affording an opportunity to correct a deficiency when the director finds either of the following:
15.6.1.a. Violation of this rule jeopardizes the health or safety of a resident; or
15.6.1.b. The violation is a repeat deficiency which has caused harm to a resident.
15.6.2. The suspension, expiration, forfeiture, or cancellation by operation of law or order of the director of a license issued by the director shall not deprive the director of the authority as provided by law and this rule to take any of the following actions:
15.6.2.a. Institute or continue a disciplinary proceeding;
15.6.2.b. Institute or continue a proceeding for the denial of license application;
15.6.2.c. Enter an order denying a license application; or
15.6.2.d. Take any other disciplinary action as provided by state law or rules.
15.6.3. Withdrawal of a license application shall not deprive the director of the right to penalize the applicant on any other ground using any authority otherwise provided by law or this rule.
15.7. Procedure for the Assessment and Application of Civil Penalties.
15.7.1. The director shall assess and apply penalties for violations of this rule in accordance with the provisions of W. Va. Code §§16B-4-1, et seq., and this rule.
15.7.2. Upon completion of a report of inspection, the director shall determine what civil money penalties he or she shall assess.
15.8. Notice of Civil Money Penalty. The director shall send to the nursing home a certified written notice of intent to impose a civil money penalty including the basis for imposing the civil money penalty. The notice shall include:
15.8.1. The nature of the noncompliance;
15.8.2. The statutory basis for the civil money penalty;
15.8.3. The amount of the civil money penalty;
15.8.4. Any factors that were considered when determining the amount of the civil money penalty;
15.8.5. When the civil money penalty is due; and
15.8.6. Instructions for responding to the notice, including a statement of the nursing home’s right to a hearing, and the implications of waiving a hearing.
15.9. Amount of Civil Money Penalty.
15.9.1. Civil money penalty assessed against licensed nursing homes may not be less than $50 nor more than $8,000. The director may not assess a civil money penalty against a nursing home that corrects the violation of the rule within 20 days of receipt of written notice of the violation, unless it is a repeat deficiency or the nursing home is a poor performer when a civil money penalty can be assessed immediately.
15.9.2. Hearing and Due Process for a Civil Money Penalty.
15.9.2.a. A nursing home shall, within 60 days from receipt of the notice of an initial, reconsidered, or revised determination of the director, submit any request for a hearing on the determination of the noncompliance that is the basis for imposition of the civil money penalty. For good cause shown, a hearing examiner may extend the time for filing the request for hearing.
15.9.2.b. If a nursing home requests a hearing within the time specified in this rule, the director shall collect the civil money penalty within 15 days of a final adjudication that upholds the director’s determination of non-compliance.
15.9.2.c. If a nursing home waives its right to a hearing in accordance with this rule, the director shall collect the civil money penalty within 75 days of the notice of determination of the director.
15.9.2.d. If the nursing home waives its right to a hearing, the civil money penalty shall be reduced by 35 percent by the director.
15.9.3. Cumulative Remedies.
15.9.3.a. The civil money penalties and remedies provided by W. Va. Code §§16B-4-1, et seq. are cumulative and are in addition to all other penalties and remedies provided by law. For a violation that presents immediate jeopardy to the health, safety, or welfare of one or more residents, the director may impose a civil money penalty of not less than $3,000 nor more than $8,000.
15.9.3.b. For a violation that actually harms one or more residents, the director may impose a civil money penalty of not less than $1,000 nor more than $3,000.
15.9.3.c. For a violation that has the potential to harm one or more residents, the director may impose a civil money penalty of not less than $50 nor more than $1,000.
15.9.3.d. For a repeat deficiency, the director may impose a civil money penalty of up to 150 percent of the penalties under the provisions of this rule.
15.9.3.e. If no plan of correction is submitted as established in this section, the director may assess a civil money penalty in the amount of $100 a day unless the nursing home has provided a reasonable explanation for the violation that has been accepted by the director.
15.9.3.f. If a deficiency for which an acceptable plan of correction has been provided to the director is not corrected upon revisit to the nursing home, the deficiency shall be regarded as a repeat deficiency.
15.9.3.g. Residents, residents’ families or legal representatives, and ombudsmen may also independently pursue violations of this rule in court. Any waiver by a resident or his or her legal representative of the right to commence an action under W. Va. Code §§16B-4-1, et seq., whether oral or in writing, is void as contrary to public policy.
15.10. Civil Money Penalty Procedures After Termination of a License.
15.10.1. In the case of termination of a nursing home license, the director shall send the civil money penalty information after the:
15.10.1.a. Final administrative decision is made;
15.10.1.b. Nursing home has waived its right to a hearing; or
15.10.1.c. Time for requesting a hearing has expired and the director has not received a hearing request from the nursing home.
15.10.2. A civil money penalty payment is due 15 days after:
15.10.2.a. A final administrative decision;
15.10.2.b. The time period for requesting a hearing has expired;
15.10.2.c. Receipt of the written request to waive a hearing; or
15.10.2.d. The effective date of termination of a license.
15.11. Civil Money Penalty for Notification of Inspection. The director shall assess a civil money penalty not to exceed $2,000 against any person who notifies, or causes to be notified, a nursing home of the time or date on which an inspection is scheduled to be conducted.
15.12. Interest on Civil Penalties.
15.12.1. The assessment for penalties and for costs of actions taken under W. Va. Code §§16B-4-1, et seq., shall accrue interest at the rate of five percent per annum beginning 30 days after receipt of notice of the assessment or after receipt of the director’s final order following a hearing, whichever is later.
15.12.2. All assessments against a nursing home that are unpaid shall be added to the nursing home’s licensure fee and may be filed as a lien against the property of the licensees or operators of the nursing home.
15.13. Action for Recovery of Civil Penalties. The director shall, in a civil judicial proceeding, recover any unpaid civil money penalty that has not been contested within 30 days of receipt of the director’s final order, or that has been affirmed on judicial review, as provided in W. Va. Code §§16B-4-1, et seq. All money collected by assessments of civil penalties or interest shall be paid into a special resident benefit account and shall be applied by the director for:
15.13.1. The protection of the health or property of the nursing home’s residents;
15.13.2. Long-term care educational activities;
15.13.3. The costs arising from the relocation of residents to other facilities when no other funds are available;
15.13.4. In an emergency situation when no other funds available, the operation of the nursing home pending correction of deficiencies or closure; and
15.13.5. The reimbursement of residents for personal funds lost.
15.14. Immediate Jeopardy. If there is immediate jeopardy to the residents’ health, safety, welfare, or rights the director shall petition the circuit court. The circuit court may issue an Order to:
15.14.1. Close the nursing home;
15.14.2. Transfer the residents in the nursing home to other nursing homes; or
15.14.3. Appoint temporary management to oversee the operation of the nursing home and to assure the health, safety, welfare, and rights of the nursing home’s residents.
15.15. Temporary Management.
15.15.1. Upon petition of the director, a circuit court may divest the licensee or operator of a nursing home of possession and control of a nursing home and appoint temporary management.
15.15.1.a. The temporary management is responsible to the court and has any powers and duties granted by the court to direct all acts necessary or appropriate to conserve the property and promote the health, safety, welfare, and rights of the residents of the nursing home.
15.15.1.b. These powers include, but are not limited to, the replacement of management and staff, the hiring of consultants, the making of any necessary expenditures to close the nursing home or to repair or improve the nursing home to return it to compliance with applicable requirements and the power to receive, conserve, and expend funds, including payments on behalf of the licensee or operator of the nursing home.
15.15.1.c. The temporary management shall give priority to expenditures for current direct resident care or the transfer of residents.
15.15.2. The person charged with temporary management shall be an officer of the court, is not liable for conditions at the nursing home that existed or originated prior to his or her appointment and is not personally liable, except for his or her own gross negligence and intentional acts for situations that result in injuries to persons or damage to property at the nursing home during the temporary management.
15.15.3. No person shall impede the operation of the temporary management. There shall be an automatic stay for a 90-day period subsequent to the establishment of a temporary management of any action that would interfere with the functioning of the nursing home, including, but not limited to, cancellation of insurance policies, termination of utility services, attachments to working capital costs, foreclosures, evictions, and repossessions of equipment used in the nursing home.
15.15.4. The temporary management established for the purpose of making improvements to bring a nursing home into compliance with applicable requirements shall not be terminated until the court has determined that the nursing home has the management capability to ensure continued compliance with all applicable requirements.
15.15.4.a. If the court has not made the determination within six months of the establishment of the temporary management, the temporary management terminates by operation of law at that time, and the nursing home shall be closed.
15.15.4.b. After the termination of the temporary management, the person who was responsible for the temporary management shall make an accounting to the court.
15.15.4.b.1. This accounting will be based on receipts and shall consist of the deduction of the cost of temporary management, expenditures and civil penalties and interest no longer subject to appeal in that order; and
15.15.4.b.2. The nursing home shall pay any excess to the licensee or operator of the nursing home.
15.15.5. The temporary manager shall bill the nursing home on a bi-weekly basis and the nursing home shall pay any amounts due within 15 days. The amount paid to the temporary manager for a 30 day period may not exceed the seventy-fifth percentile of the allowable administrators’ salary reported on the most recent cost report for the nursing home’s peer group as determined by the director.
15.16. Corrective Action.
15.16.1. The director shall enforce these provisions to protect residents of nursing homes.
15.16.2. A nursing home, found on the basis of an inspection to have deficiencies, shall develop a plan of correction and submit it to the director within ten working days of receipt of a report of inspections. The director may allow three additional days in the event of a documented extenuating circumstance.
15.16.3. A plan of correction shall specify the time when the nursing home shall correct each violation cited in the report.
15.16.4. The time specified shall be the shortest possible time within which the nursing home can reasonably be expected to correct the violation.
15.16.5. The time stated is subject to approval or modification by the director.
15.16.6. In determining whether to approve the time submitted by the nursing home, the director shall consider the following factors:
15.16.6.a. The seriousness of the violation;
15.16.6.b. The number of residents affected;
15.16.6.c. The availability of required equipment or personnel;
15.16.6.d. The estimated time required for delivery and installation of required equipment; and
15.16.6.e. Any other relevant circumstances.
15.16.7. A plan of correction shall contain:
15.16.7.a. The corrective actions that the nursing home will accomplish for those residents found to have been affected by the deficiency;
15.16.7.b. How the nursing home will identify other residents having the potential to be affected by the same deficiency and what corrective action will be taken;
15.16.7.c. What measures the nursing home will put into place or what systematic changes will be made to ensure that the deficiency does not recur; and
15.16.7.d. How the nursing home will monitor the corrective actions put in place to ensure the deficiency will not recur, i.e., what quality assurance program will be put into place.
15.16.8. A plan of correction submitted by a nursing home shall be approved, modified, or rejected by the director.
15.16.9. The director shall notify each nursing home within ten working days as to whether a plan of correction has been approved, modified, or rejected.
15.16.10. If the director rejects or modifies the plan, the reasons for the action shall be stated in the notice.
15.16.11. When the director rejects a plan of correction, a revised plan shall be submitted by the nursing home to the director within seven working days of receipt of the rejection.
15.16.12. A nursing home with a repeat deficiency or with deficiencies resulting in immediate jeopardy or causing harm to a resident may not submit a revised plan of correction.
15.16.13. If the nursing home fails to submit a plan of correction that is accepted by the director or to correct any deficiency within the time specified in an accepted plan of correction, the director may assess civil money penalties as provided in this rule or may initiate any other legal or disciplinary action available to him or her in accordance with state law and this rule.
TABLE 71-15.A.
Minimum Ratios of Resident Care Personnel to Residents Total Resident Care Personnel Total Resident Care Personnel Total Resident Care Personnel Total Resident Care Personnel No. of Residents Hours per Day #Pers per Day No. of Residents Hours per Day #Pers per Day No. of Residents Hours per Day #Pers per Day No. of Residents Hours per Day #Pers per Day 3 to 10 11 to 20 21 to 30 31 to 40 41 to 50 60* *60 and less may include director of nurse Number of personnel per day are full-time personnel equivalents based on 40 hours per week.
TABLE 71-15.B.
Surety Bond Schedule AVERAGE RESIDENTS FUNDS MONTHLY BALANCE REQUIRED SURETY BOND AMOUNT $1 to $2,000 $2,500 $2,001 to $2,100 $2,625 $2,101 to $2,200 $2,750 $2,201 to $2,300 $2,875 $2,301 to $2,400 $3,000 $2,401 to $2,500 $3,125 $2,501 to $2,600 $3,250 $2,601 to $2,700 $3,375 $2,701 to $2,800 $3,500 $2,801 to $2,900 $3,625 $2,901 to $3,000 $3,750 $3,001 to $3,100 $3,875 $3,101 to $3,200 $4,000 $3,201 to $3,300 $4,125 $3,301 to $3,400 $4,250 $3,401 to $3,500 $4,375 $3,501 to $3,600 $4,500 $3,601 to $3,700 $4,625 $3,701 to $3,800 $4,750 $3,801 to $3,900 $4,875 $3,901 to $4,000 $5,000 $4,001 to $4,100 $5,125 $4,101 to $4,200 $5,250 $4,201 to $4,300 $5,375 $4,301 to $4,400 $5,500 $4,401 to $4,500 $5,625 $4,501 to $4,600 $5,750 $4,601 to $4,700 $5,875 $4,701 to $4,800 $6,000 $4,801 to $4,900 $6,125 $4,901 to $5,000 $6,250 $5,001 to $5,100 $6,375 $5,101 to $5,200 $6,500 $5,201 to $5,300 $6,625 $5,301 to $5,400 $6,750 $5,401 to $5,500 $6,875 $5,501 to $5,600 $7,000 $5,601 to $5,700 $7,125 $5,701 to $5,800 $7,250 $5,801 to $5,900 $7,375 $5,901 to $6,000 $7,500 $6,001 to $6,100 $7,625 $6,101 to $6,200 $7,750 $6,201 to $6,300 $7,875 $6,301 to $6,400 $8,000 $6,401 to $6,500 $8,125 $6,501 to $6,600 $8,250 $6,601 to $6,700 $8,375 $6,701 to $6,800 $8,500 $6,801 to $6,900 $8,625 $6,901 to $7,000 $8,750 $7,001 to $7,100 $8,875 $7,101 to $7,200 $9,000 $7,201 to $7,300 $9,125 $7,301 to $7,400 $9,250 $7,401 to $7,500 $9,375 $7,501 to $7,600 $9,500 $7,601 to $7,700 $9,625 $7,701 to $7,800 $9,750 $7,801 to $7,900 $9,875 $7,901 to $8,000 $10,000 $8,001 to $8,100 $10,125 $8,101 to $8,200 $10,250 $8,201 to $8,300 $10,375 $8,301 to $8,400 $10,500 $8,401 to $8,500 $10,625 $8,501 to $8,600 $10,750 $8,601 to $8,700 $10,875 $8,701 to $8,800 $11,000 $8,801 to $8,900 $11,125 $8,901 to $9,000 $11,250 $9,001 to $9,100 $11,375 $9,101 to $9,200 $11,500 $9,201 to $9,300 $11,625 $9,301 to $9,400 $11,750 $9,401 to $9,500 $11,875 $9,501 to $9,600 $12,000 $9,601 to $9,700 $12,125 $9,701 to $9,800 $12,250 $9,801 to $9,900 $12,375 $9,901 to $10,000 $12,500 $10,001 or more Calculate *Calculate 1.25 times the prior year’s average monthly balance of client’s funds.
Series 16 Neonatal Abstinence Syndrome Centers Licensure
W. Va. Code R. § 71-16-1 General
1.1. Scope. -- It is the purpose of this rule to implement state law governing the licensing, operation, and standards of care in neonatal abstinence syndrome centers located within the state of West Virginia.
1.2. Authority. -- W. Va. Code §16B-21-2.
1.3. Filing Date. -- May 28, 2025.
1.4. Effective Date. -- May 28, 2025.
1.5. Sunset Date. -- This rule will terminate and have no further force or effect on August 1, 2030.
1.6. Application. This rule applies to neonatal abstinence syndrome center patients and legal representatives as well as every individual and every form of organization, whether incorporated or unincorporated, trust, association, or political subdivision of the state that operates or applies to operate a neonatal abstinence syndrome center as defined in this rule and the authorizing state law.
1.7. Enforcement. This rule is enforced by the Inspector General. The Inspector General designates the director of the Office of Health Facility Licensure and Certification to enforce the provisions of W. Va. Code §§16B-21-1, et seq., and the provisions of this Rule, except where otherwise stated.
W. Va. Code R. § 71-16-2 Definitions
2.1. Abuse — means the threat to a patient's health or welfare by a person who knowingly or intentionally inflicts, attempts to inflict or knowingly allows another person to inflict physical injury or mental or emotional injury upon the patient; or sexual abuse or sexual exploitation.
2.2. Addiction — means a disease characterized by an individual pursuing reward and/or relief with substance use and/or other behaviors. Addiction is characterized by impairment in behavioral control, craving, inability to consistently abstain, and diminished recognition of significant problems with one's behaviors and interpersonal relationships; likely to involve cycles of relapse and remission.
2.3. Administrator — means an individual designated by the governing body of the neonatal abstinence center to be responsible for the day-to-day operation of the neonatal abstinence syndrome center.
2.4. Adult Protective Services/Child Protective Services (APS/CPS) Background Check — means an authorized disclosure of an individual's history with the West Virginia Department of Human Services as an identified adult or child abuse maltreater.
2.5. Annual Inspection — means a recurring inspection by the Office of Health Facility Licensure and Certification that will take place once every nine to 15 months.
2.6. Applicant — means the person or entity who submits an application for a license or renewal of a license to operate a neonatal abstinence syndrome center.
2.7. Bed Capacity — means the maximum number of beds a neonatal abstinence syndrome center is licensed to offer residential care and occupancy.
2.8. Care Plan — means a document, based on a comprehensive assessment and prepared by the interdisciplinary team in conjunction with the patient's parent, family and/or legal representative that identifies measurable goals and objectives for the highest level of functioning the patient is expected to attain or maintain.
2.9. Change of Ownership — means any transaction that results in the change of control over the capital assets of a neonatal abstinence syndrome center including, but not limited to, a conditional sale, a sale, a lease or a transfer of title or controlling stock.
2.10. Complaint — means a verbal or written statement made by a patient, family member, legal representative and/or community member and filed with the program administrator or a state oversight agency alleging inadequate or inappropriate service on the part of a neonatal abstinence syndrome center.
2.11. Conflict of Interest — means any action that results in, or has the appearance of resulting in, personal, organizational, or professional gain.
2.12. Critical Incident or Adverse Event — means an incident resulting in or the potential for significant harm or death to a patient; an immediate threat to care or safety of an individual, either staff or patient; the possibility of serious operational or personnel problems within the center; or the potential to undermine public confidence in the neonatal abstinence syndrome center.
2.13. Deficiency — means a neonatal abstinence center's failure to meet a specific requirement under the provisions of this rule. A deficiency cited by the Department shall explicitly state which requirement was not met and include evidence to support the Department's decision of noncompliance.
2.14. Director — means the Director of the Office of Health Facility Licensure and Certification, or his or her designee.
2.15. Diversion Control Plan — means a required plan developed by the neonatal abstinence syndrome center to minimize the diversion of methadone or other medications to illicit use.
2.16. Employee — means any person who performs personal services for the neonatal abstinence syndrome center in exchange for monetary compensation. Such personal services that include the results to be accomplished, as well as the details and the means by which the results are accomplished, are controlled and directed by the neonatal abstinence center. Monetary compensation is affected through the neonatal abstinence center's payroll system.
2.17. Experimental Research — means development and testing of clinical treatments, such as an investigational drug or therapy, involving treatment or control groups or both. For example, a clinical trial of an investigational drug is experimental research.
2.18. Facility — means the physical building in which a neonatal abstinence syndrome center services are provided.
2.19. Family — means a group of two or more persons related by blood, marriage, foster relationship, or adoption.
2.20. For-Cause Inspection — means an inspection by the state oversight agency that may be operating in violation of state neonatal abstinence syndrome center standards, may be providing substandard treatment or may be serving as a possible source of diverted medications.
2.21. Governing Body — means the person or persons identified as being legally responsible for the operation of the neonatal abstinence syndrome center. A governing body may be a board, a single entity or ownership or a partnership.
2.22. Grievance — means a written or oral complaint filed with the program administrator or the state operating agency alleging inadequate or inappropriate treatment by the neonatal abstinence syndrome center.
2.23. Harm — means noncompliance with this rule that has negatively affected the patient so that the patient's physical, mental or psychosocial well-being has been compromised, and is not temporary in nature.
2.24. Immediate Jeopardy — means a situation in which the neonatal abstinence syndrome center's noncompliance with one or more requirements of this rule has caused, or is likely to cause, serious injury, harm, impairment, or death of a patient.
2.25. Individualized Plan of Care — means a plan of treatment and care developed by the patient's interdisciplinary team that outlines the attainable short term and long-term treatment goals, the services to be provided, the frequency of services, and the responsible party for each goal and service.
2.26. Informed Consent — means written acknowledgment and verification by the patient's legal representative stating that information on the advantages and disadvantages of all aspects of the treatment provided to the patient and that the patient's legal representative agrees to the treatment.
2.27. Inspector General – means the Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1 or his or her designee.
2.28. Interdisciplinary Team — means a group of professionals and paraprofessionals responsible to develop, approve, and coordinate the individualized treatment plan of care and services for the patient.
2.29. Legal Representative — means the parent or parents of a minor patient, or a person appointed as guardian pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code §§44A-1-1, et seq., within the limits set by the appointing order, or the legal custodian as identified by the person appointed as guardian.
2.30. License — means the document issued by the Office of Health Facility Licensure and Certification that constitutes the neonatal abstinence syndrome center's authority to receive patients and perform services within the scope of this rule.
2.31. Licensed or Registered — means the person licensed or registered to follow a profession by the proper authority within the state of West Virginia. When applied to a neonatal abstinence syndrome center, it means the facility is licensed by the Office of Health Facility Licensure and Certification.
2.32. Licensee — means a person, persons or entity holding a license to operate a neonatal abstinence syndrome center, and who is responsible for compliance with all rules and minimum standards.
2.33. Medical Director — means the physician licensed within the state of West Virginia who assumes responsibility for administering all medical services performed by the neonatal abstinence syndrome center, either by performing them directly or by delegating specific responsibility to authorized program physicians and health care professionals functioning under the medical director's supervision.
2.34. Medication Error — means any preventable event where a dose of medication received, or not received by a patient differs from what the prescriber has prescribed.
2.35. Misappropriation — means the deliberate misplacement, exploitation or wrongful use of a patient's belongings or money.
2.36. Neglect — means the failure to provide goods and services, including but not limited to, adequate nutrition, clothing, shelter, supervision, medical care or education, or abandonment.
2.37. Neonatal — means the period of time covering the first 28 days after birth.
2.38. Neonatal Abstinence Syndrome Center — means any center or facility, however named, within the state of West Virginia, which is advertised, offered, maintained or operated by the ownership or management, whether for consideration or not, for the express or implied purpose of providing accommodations and care, for a period of more than 24 hours but not to exceed 30 days, unless the physician recommends a longer length of stay based on documented evidence-based practices and the infant's individual response to treatment.
2.39. Neonatal Abstinence Syndrome — means a group of symptoms that occur in a newborn who was exposed to addictive drugs while in the mother's womb and includes prenatal exposure to a neuroactive substance and exhibits clinical signs and symptoms of withdrawal, regardless of whether pharmacological treatment is required.
2.40. Noncompliance — means any deficient practice or non-conformity that causes a neonatal abstinence syndrome center to not be in substantial compliance with this rule.
2.41. Non-Pharmacological Intervention — means evidence-based treatment, excluding the use of pharmacological interventions, for neonatal abstinence syndrome that is recognized by the American Academy of Pediatrics, or a nationally recognized organization with expertise in neonatal abstinence syndrome.
2.42. Office of Health Facility Licensure and Certification — means the West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
2.43. Orientation — means the introduction of the legal representative, parents, and/or family to the policies and procedures of the neonatal abstinence syndrome center.
2.44. Patient — means an individual under six months old receiving treatment from a neonatal abstinence syndrome center.
2.45. Pharmacological Treatment — means the use of prescribed medications indicated to relieve moderate to severe signs of neonatal abstinence syndrome and to prevent complications such as fever, weight loss, and seizures that is recognized by the American Academy of Pediatrics, or a nationally recognized organization with expertise in neonatal abstinence syndrome.
2.46. Physician — means an individual licensed to practice allopathic medicine by the West Virginia Board of Medicine pursuant to W. Va. Code §§30-3-1, et seq., or osteopathic medicine by the West Virginia Board of Osteopathic Medicine pursuant to W. Va. Code §§30-14-1, et seq.
2.47. Plan of Care — means the overall profile of services and expected outcomes of care that may include plans to meet the person's needs after discharge. This includes all care and services outlined in the medical record.
2.48. Plan of Correction — means a written description of the actions the neonatal abstinence syndrome center intends to take to correct and prevent the recurrence of violations of a rule or policy identified by the designated state oversight agency during an investigation or survey.
2.49. Program Sponsor — means the person named in the application for licensure of a neonatal abstinence syndrome center who is responsible for the operation of the neonatal abstinence syndrome center, and who assumes responsibility for all of its employees, and contractors. The program sponsor is not required to be a licensed physician but shall employ a licensed physician for the position of medical director.
2.50. Protective Services — means Child or Adult Protective Services operating under the West Virginia Department of Human Services.
2.51. Repeat Deficiency — means a deficiency that meets all of the following conditions: is cited on the current inspection; was cited on the previous inspection or any intervening inspection between the current inspection and the previous inspection; has had a plan of correction submitted for the previous inspection or any intervening inspection that was accepted by the Director; and is cited based on the same regulatory grouping.
2.52. Scoring System — means a formal, validated method for assessing neonatal abstinence syndrome severity that is recognized by the American Academy of Pediatrics, or a nationally recognized organization with expertise in neonatal abstinence syndrome.
2.53. Variance — means a formal agreement between the Office of Health Facility Licensure and Certification and the neonatal abstinence syndrome center that allows the program to comply with the intent of the regulatory rule, policy or standard in a manner not otherwise permitted by this rule, policy or standard. A variance may not be obtained based solely on the inability to achieve compliance.
2.54. Volunteer — means individuals who perform services without pay.
W. Va. Code R. § 71-16-3 Licensure, Approval, and Exemption
3.1. The intent of the neonatal abstinence syndrome center, or center is to:
3.1.1. Treat symptoms of withdrawal in patients who have been prenatally exposed to drugs using both pharmacological and non-pharmacological interventions;
3.1.2. Educate families, legal representatives, and/or foster families in the appropriate care needs of a patient with neonatal abstinence syndrome; and
3.1.3. Support families through the recovery process.
3.2. Unless otherwise exempted by this rule, all individuals or other entities operating as a neonatal abstinence syndrome center shall meet the requirements of applicable state statutes and rules and shall be licensed by the designated state oversight agency.
3.3. Hospitals licensed under W. Va. Code §§16B-3-1, et seq., and W. Va. Code R. §§71-12-1, et seq.; behavioral health centers licensed under W. Va. Code R. §§71-25-1, et seq.; and opioid treatment facilities licensed under W. Va. Code §§16B-13-1, et seq., and W. Va. Code R. §§71-27-1, et seq., and which provide opioid treatment to adults, 18 years or older, are exempt from this rule.
3.4. Licensed neonatal abstinence syndrome centers are exempt from state licensure regulating hospitals (W. Va. Code §§16B-3-1, et seq. and W. Va. Code R. §§71-12-1, et seq.), behavioral health centers (W. Va. Code R. §§71-25-1, et seq.), nursing homes (W. Va. Code §§16B-4-1, et seq. and W. Va. Code R. §§71-15-1, et seq.), chronic pain management clinics (W. Va. Code §§16B-7-1, et seq. and W. Va. Code R. §§71-26-1, et seq.) and opioid treatment centers (W. Va. Code §§16B-13-1, et seq. and W. Va. Code R. §§71-27-1, et seq.).
3.5. Licensure Process.
3.5.1. Before establishing, operating, maintaining or advertising a neonatal abstinence syndrome center within the state of West Virginia, the center shall:
3.5.1.a. Have an approved certificate of need pursuant to W. Va. Code §§16-2D-1, et seq.; and
3.5.1.b. Obtain from the Office of Health Facility Licensure and Certification a license authorizing the operation of the neonatal abstinence syndrome center.
3.6. License Application.
3.6.1. All applications for an initial or renewed license for a neonatal abstinence syndrome center shall include:
3.6.1.a. A completed application as established by the Office of Health Facility Licensure and Certification;
3.6.1.b. A copy of the approved certificate of need pursuant to W. Va. Code §§16-2D-1, et seq.;
3.6.1.c. Copies of all required policies and procedures; and
3.6.1.d. The applicable filing fee.
3.6.2. The program sponsor shall submit all required information for the initial application not less than 30 days and not more than 60 days prior to the anticipated initiation of services.
3.7. License Fees and Inspection Costs.
3.7.1. All initial and renewal fees shall be assessed by the Director and shall include a non-refundable license fee in the amount of $250, and an application fee of $400. The license and application fee must be paid to the Office of Inspector General in full prior to the issuance of the license.
3.7.2. The neonatal abstinence syndrome center shall pay for the cost of the initial inspection made by the Office of Health Facility Licensure and Certification prior to issuing a license. The cost of the initial inspection shall be billed to the applicant within five business days after the inspection. The cost of the initial inspection fee must be paid in full by the applicant before a license may be issued.
3.8. Initial Inspection and Issuance of License.
3.8.1. Upon receipt of an application for an initial license to operate as a neonatal abstinence syndrome center, the Office of Health Facility Licensure and Certification shall make an unannounced inspection of the center. This inspection will determine whether the program has satisfied all of the state requirements for licensure.
3.8.2. If the inspection reveals violations, deficiencies or shortcomings on the part of the neonatal abstinence center, the Office of Health Facility Licensure and Certification shall advise the program sponsor. The program sponsor may submit a written plan of correction demonstrating compliance with the cited deficiencies or request a variance. The Director may conduct follow-up inspections, if required.
3.8.3. Following an application review, onsite inspection or inspections, approval of any subsequent written plans of correction, or the granting of a variance, if there is substantial compliance with the requirements of this rule and the cost of the inspection and license has been paid in full, the Office of Health Facility Licensure and Certification shall issue a license in one of three categories:
3.8.3.a. An initial license, valid for six months from the date of issuance, shall be issued to the program establishing a new unlicensed program found to be in substantial compliance on initial review with regard the provisions of this rule.
3.8.3.b. A provisional license shall be issued when a program seeks a renewal license and is not in substantial compliance with this rule but does not pose a significant risk to the rights, health and safety of the patient. A provisional license expires not more than six months from the date of issuance and shall be consecutively reissued upon action of the Office of Health Facility Licensure and Certification for a period not to exceed 12 months, unless the provisional determination is that of the state fire marshal.
3.8.3.c. A renewal license shall be issued annually when a neonatal abstinence syndrome center has successfully completed the survey process. Renewal licenses expire not more than one year from the date of issuance.
3.9. Denial of License.
3.9.1. The Director, in consultation with the Inspector General, may deny an application for an initial or renewed license when:
3.9.1.a. The state oversight agency determines the application is deficient in any respect;
3.9.1.b. The neonatal abstinence syndrome center will not be or is not operated in accordance with state standards, rules, and procedures;
3.9.1.c. The neonatal abstinence syndrome center will not permit an inspection or survey to proceed or will not permit access to relevant records or information in a timely manner; or
3.9.1.d. The neonatal abstinence syndrome center has made misrepresentations in obtaining certification or licensure.
3.9.2. If the state oversight agency determines not to issue a license, the Director shall notify the applicant in writing by regular mail of the denial and the basis for the decision.
3.9.3. A neonatal abstinence syndrome center may protest the denial of a new or renewed license pursuant to the administrative procedures in section 3.11. of this rule.
3.10. Renewal or Modified License.
3.10.1. Renewal License. The program sponsor of a neonatal abstinence syndrome center shall submit an application for a renewed license to the Director not less than 60 days prior to the expiration of the current license.
3.10.1.a. After the Director receives a complete renewal application with the required fee, the existing license shall not expire until the new license has been issued or denied.
3.10.2. Modified License. The program sponsor shall notify the Director 30 days prior to a change in name, a change in the geographic location or services, or a change in the substantial nature of the center and shall simultaneously apply for modification of the license.
3.11. Administrative Due Process.
3.11.1. Any person aggrieved by an order by the Director based on this rule may request in writing a hearing by the Board of Review.
3.11.2. All hearings shall be conducted in accordance with the Office of Inspector General Procedural Rule, "Rules of Procedure for Contested Case Hearings and Declaratory Rulings", W. Va. Code R. §§69-1-1, et seq., a copy of which may be obtained from the Secretary of State.
3.12. Variances.
3.12.1. The Director, in consultation with the Inspector General, may grant a variance from any provision of this rule if he or she determines:
3.12.1.a. Strict compliance would impose a substantial hardship on the licensee;
3.12.1.b. The licensee will otherwise meet the intent of the rule; and
3.12.1.c. A variance will not result in less protection of the health, safety and welfare of the patients.
3.12.2. A variance shall not be granted from a provision pertaining to patients' rights.
3.12.3. Requests for variances from the West Virginia fire safety and building construction requirements shall be addressed with the appropriate authorities.
W. Va. Code R. § 71-16-4 Office of Health Facility Licensure and Certification Authority; Powers and Duties
4.1. The Office of Health Facility Licensure and Certification shall provide regulatory oversight, licensing and inspection of neonatal abstinence syndrome centers.
4.2. The duties and powers of the Inspector General, as delegated to the Director, include, but are not limited to, the following:
4.2.1. Develop and implement rules, standards, and best practice guidelines regarding the licensure and oversight of neonatal abstinence syndrome centers;
4.2.2. Accept applications and fees for the licensure of neonatal abstinence syndrome centers;
4.2.3. Conduct all necessary reviews, inspections or investigations in order to determine whether a license should be issued or renewed;
4.2.4. Issue initial, amended and renewed licenses to neonatal abstinence syndrome centers upon a determination that the program is qualified;
4.2.5. Deny initial, amended and renewed licenses to neonatal abstinence centers upon the determination that the program is not qualified;
4.2.6. Perform annual inspections, revisits and complaint investigations as unannounced surveys when necessary and appropriate;
4.2.7. Monitor activities of all neonatal abstinence syndrome centers to ensure compliance with all state requirements;
4.2.8. Receive and act upon patient complaints, appeals and grievances;
4.2.9. Inspect all allegations of misconduct, rule or regulation violations, unauthorized activities or other conduct that may affect the health, safety or well-being of patients or employees of a neonatal abstinence syndrome center;
4.2.10. Issue a directed plan of correction when a neonatal abstinence syndrome center fails to develop an acceptable plan of correction;
4.2.11. Revoke or suspend the license of a neonatal abstinence syndrome center in accordance with the applicable administrative proceedings; and
4.2.12. Perform all other necessary actions related to the licensing, monitoring, investigatory and oversight of neonatal abstinence syndrome centers.
4.3. Annual Inspections.
4.3.1. Each neonatal abstinence syndrome center shall be inspected annually by the Director. Inspections shall include, but are not limited to:
4.3.1.a. Observations of service delivery;
4.3.1.b. Review of life safety and environmental conditions;
4.3.1.c. Review of clinical and administrative records;
4.3.1.d. Review of policies and procedures;
4.3.1.e. Review of employee and volunteer personnel files, criminal background checks, qualifications, staff education and staff training; and
4.3.1.f. Interviews with staff, administrators, volunteers, families, and legal representatives.
4.3.2. The neonatal abstinence syndrome center shall comply with any reasonable requirements from the Director with access, in a timely manner, to the facility, personnel, records, patients, and/or family/legal representatives to conduct annual inspection activities.
4.3.3. Within ten working days of the completion of the inspection, the Director shall issue a written report to the center. The written report or statement of deficiencies will detail the findings of the annual inspection, and a determination of compliance.
4.3.4. The Director may permit the neonatal abstinence syndrome center to develop a plan of correction based on the finding of the statement of deficiencies.
4.3.5. Based upon the neonatal abstinence syndrome center's previous substantial compliance with this rule, and the current inspection report, the Director may waive the requirement for an onsite inspection for issuance of an amended license.
4.4. For Cause Inspections and Complaints.
4.4.1. The Director may at any time inspect a neonatal abstinence syndrome center for cause upon a complaint or a reasonable suspicion the facility is operating in violation of this rule.
4.4.2. Any person may file a complaint with the Office of Health Facility Licensure and Certification alleging a violation of applicable laws, rules, or policies by a neonatal abstinence syndrome center.
4.4.3. The Director may conduct unannounced inspections of a neonatal abstinence syndrome center named in a complaint and any other inquiries deemed necessary to determine the validity of a complaint.
4.4.4. At the time of any on-site investigation activities, the Director shall notify the program sponsor or administrator of the general reason for the investigation.
4.4.5. Within ten working days of the completion of the investigation, the Director shall provide the program sponsor or administrator a written report of the results of the investigation. The report shall specify any deficiency found and the provisions of this rule that forms the basis for the violation.
4.4.6. The Director may permit the neonatal abstinence center to develop a plan of correction to address any cited violations or deficiencies.
4.4.7. The Director may issue a directed plan of correction to the center for implementation by the neonatal abstinence center to correct any violations or deficiencies.
4.4.8. The Director shall keep confidential any information that could reasonably lead to the identification of a complainant and of any patient involved in the complaint or investigation. The Director shall not disclose such information without the written consent of the complainant. Any identifying information shall be deleted before disclosure of the investigative information to the public.
4.5. Plans of Correction.
4.5.1. Within ten working days of the completion of the inspection, the Director shall issue a written report to the center. The written report or statement of deficiencies will detail the findings of the annual inspection, and a determination of compliance.
4.5.2. The Director may permit the neonatal abstinence syndrome center to develop a plan of correction based on the finding of the statement of deficiencies.
4.5.3. The Director may issue a directed plan of correction for implementation by the neonatal abstinence syndrome center to correct any violations or deficiencies.
4.5.4. Within ten working days after receipt of the inspection report, program sponsor or administrator shall submit to the Director for approval a written plan of correction for all deficiencies cited in an initial, provisional, renewal, complaint, or revisit survey. The plan of correction shall specify:
4.5.4.a. Any action taken or procedures proposed to correct the deficiencies and prevent their reoccurrence;
4.5.4.b. The date of completion of each action taken or to be taken; and
4.5.4.c. The signature of the head of the governing body or his or her designee.
4.5.5. The neonatal abstinence syndrome center shall correct all deficient practices cited during a survey.
4.5.5.a. The facility must take immediate steps to correct a deficient practice that poses an immediate jeopardy to the health or safety of a patient or other person.
4.5.5.b. The facility must identify a completion date for each correction. This completion date shall be within a time period that allows for the correction of the deficient practice.
4.5.6. The proposed plan of correction shall be approved, modified or rejected by the Director in writing.
4.5.6.a. The Director shall determine if the satisfactory corrections have been made and advise the program sponsor in writing of any compliance or continued deficiencies.
4.5.6.b. The Director shall state the reasons for rejection or modification of any plan of correction.
4.5.7. The neonatal abstinence syndrome center shall submit a revised plan of correction to the Director within ten working days of receipt of a rejection by the Director.
4.5.8. The Director may conduct an onsite revisit to determine compliance with the plan of correction.
4.6. Penalties.
4.6.1. The Director, in consultation with the Inspector General, may impose a fine, suspend or revoke a license or take other action as deemed appropriate to address any violations or deficiencies.
4.6.2. The Director, in consultation with the Inspector General, may suspend or revoke a license of any neonatal abstinence syndrome center for violating the prohibition of this rule.
4.6.3. The Director, in consultation with the Inspector General, may deny any application for licensure or licensure renewal as a neonatal abstinence syndrome center; revoke or suspend a license; and/or order an admissions ban or reduction in patient census for one or more of the following reasons:
4.6.3.a. The Director makes a determination that fraud or other illegal action has been committed;
4.6.3.b. The Director has violated federal, state or local law relating to building, health, fire protection, safety, sanitation or zoning;
4.6.3.c. The neonatal abstinence syndrome center conducts practices that jeopardize the health, safety, welfare or clinical treatment of a patient;
4.6.3.d. The neonatal abstinence syndrome center has failed or refused to submit reports or make records available as requested by the Director; or
4.6.3.e. The neonatal abstinence syndrome center has refused to provide access to its facility or records as requested by the Director.
4.6.4. If a license for a neonatal abstinence syndrome center has been revoked, the Director, in consultation with the Inspector General, may stay the effective date of the revocation if the program can show that the stay is necessary to ensure appropriate referral and placement of patients.
4.7. Informal Dispute Resolution.
4.7.1. The Director shall offer a neonatal abstinence syndrome center an opportunity for an informal dispute resolution process to contest a cited deficiency.
4.7.2. The neonatal abstinence syndrome center shall submit a request for an informal dispute resolution to the Director with the plan of correction.
4.7.3. The request for an informal dispute resolution must be received within ten working days of receipt of the inspection or investigation report.
4.7.4. The Director will maintain policies and procedures for conducting informal dispute resolutions.
4.7.5. If the neonatal abstinence syndrome center is successful in demonstrating the disputed deficiencies should not have been cited, the Director shall remove the deficiencies from the inspection or investigation report, and rescind any penalties imposed solely as a result of those disputed deficiencies.
4.7.6. All communications during an informal dispute resolution are confidential and cannot be used by or against the licensee or the Director in the event a formal hearing takes place.
4.7.7. Neither party is entitled to representation during the informal dispute resolution process.
4.8. Inspection Reports and Records.
4.8.1. Neonatal Abstinence Center Responsibilities.
4.8.1.a. The center shall make the results of the surveys and inspections, as well as plans of correction, available for examination in a place readily accessible.
4.8.1.b. The center shall post a notice of the availability of the survey and inspection reports in a place readily accessible to patients and visitors.
4.8.1.c. Any person shall have the right to review the most recent and past state inspection and complaint reports with the plan of correction.
4.8.2. Office of Health Facility Licensure and Certification Responsibilities.
4.8.2.a. The Director shall keep on file a report of any inspection, survey, investigation of any neonatal abstinence syndrome center or any program sponsor, owner, employee, volunteer or patient thereof in accordance with the Office of Inspector’s record retention policy.
4.8.2.b. The information in reports or records shall be available to the public except for the following:
4.8.2.b.1. Information regarding complaints and subsequent investigations that is deemed confidential by any provision of this rule or applicable state or federal laws;
4.8.2.b.2. Information of a personal nature from a patient or personnel file; or
4.8.2.b.3. Information required to be kept confidential by state or federal law.
4.8.2.c. The Director shall make available for public inspection and, upon request, provide hard copies at a cost of $0.25 per page or electronically at a nominal cost, of the following documents:
4.8.2.c.1. Applications and exhibits;
4.8.2.c.2. Inspection reports;
4.8.2.c.3. Reports of investigations conducted in response to complaints; and
4.8.2.c.4. Any other report filed with or issued by the Director pertaining to the compliance of a neonatal abstinence syndrome center with applicable laws and rules.
4.8.2.d. If the Director determines it is in the best interest of the public, the Director may provide copies of records and reports free of charge to nonprofit community organizations upon written request.
4.8.2.e. The Director shall treat a report of inspection of a center as public information from the time an acceptable plan of correction is submitted.
4.8.2.f. If the center does not submit a written plan of correction, or a written plan of correction is not required within the time specified by the Director pursuant to this rule, reports pertaining to the center shall be made public at the expiration of the specified time.
4.8.2.g. Other records and reports shall be treated as public information from the time they are submitted to or issued by the Director.
4.8.2.h. Nothing contained in this section shall be construed to require or permit the public disclosure of confidential medical, social, personal, or financial records of any patient.
4.10. Interpretive Guidelines. The Director, in consultation with the Inspector General, may issue interpretive guidelines related to this rule and prior to the adoption and implementation of the guidelines, shall provide notice of a public comment period to all affected parties.
W. Va. Code R. § 71-16-5 Administrative Organization
5.1. Each neonatal abstinence syndrome center shall identify a program sponsor, a governing body, an administrator, an advisory council, and a quality improvement committee.
5.2. Each member of the administrative organization, including staff, shall not have any actual or perceived conflict of interest.
5.3. Program Sponsor.
5.3.1. The program sponsor is the person named in the application for certification and licensure of a neonatal abstinence syndrome center.
5.3.2. The program sponsor shall agree on behalf of the center to adhere to all requirements set forth in federal and state laws, rules or regulations regarding the use of pharmacological medications in the treatment of neonatal abstinence syndrome.
5.3.3. The program sponsor is responsible for the general establishment, certification, licensure and operation of the neonatal abstinence syndrome center.
5.3.4. The program sponsor need not be a licensed physician. If the program sponsor is not a licensed physician, the center shall employ a licensed physician for the position of medical director. The medical director shall meet all requirements as specified in this rule.
5.4. Governing Body. The governing body is one or more persons identified by the program sponsor as being legally responsible for the operation of the neonatal abstinence syndrome center.
5.5. Administrator.
5.5.1. The administrator of the center shall have:
5.5.1.a. A minimum of a bachelor's degree in an appropriate area of study and a minimum of four years of management or administrative experience with programs for neonatal abstinence syndrome, neonatal care, pediatric care, substance abuse, mental health, or other related field at the discretion of the governing body, or
5.5.1.b. A minimum of a master's degree in an appropriate area of study and a minimum of two years of management or administrative experience with programs for neonatal abstinence syndrome, neonatal care, pediatric care, substance abuse, mental health, or other related field at the discretion of the governing body.
5.5.2. The administrator is responsible for the day-to-day operation of the center in a manner consistent with all applicable federal and state laws and regulations.
5.5.3. The duties of the administrator include, but are not limited to:
5.5.3.a. Development of policies and procedures for operation of the center;
5.5.3.b. Maintenance and security of the center;
5.5.3.c. Employment, credentialing, evaluation, scheduling, training and management of staff;
5.5.3.d. Protection of patient rights;
5.5.3.e. Conformity of the program with confidentiality laws and regulations;
5.5.3.f. Security of medication storage and safe handling of medications;
5.5.3.g. Management of the facility budget;
5.5.3.h. Implementation of a quality improvement committee;
5.5.3.i. Implementation of governing body policy; and
5.5.3.j. Communication with the governing body.
5.6. Advisory Council.
5.6.1. Each center shall have an advisory council comprised of a designated group of individuals to serve in a non-managerial advisory capacity to the administrator and governing body.
5.6.2. The advisory council shall consist of individuals previously served by the program, at least one staff representative and interested community members and/or advocates. "Individuals previously served by the program" includes but is not limited to, parents, grandparents, foster parents, adoptive parents, and legal representatives. Individuals who were previously served by the program who have or have had addiction disorders shall be in recovery or have completed a recovery program to participate on the advisory council.
5.6.3. The advisory council shall not have access to any patient medical records unless personally identifying information has been redacted.
5.6.4. The advisory council shall meet at least quarterly in an area of the center where there are no patients present.
5.6.5. The advisory council shall:
5.6.5.a. Review program policies and procedures annually, or as proposed for revision;
5.6.5.b. Make recommendations for operational changes or improvements;
5.6.5.c. Be trained in patient confidentiality laws and regulations;
5.6.5.d. Keep records of meetings and describe business conducted, members present, and members absent; and
5.6.5.e. Work to assist the neonatal abstinence center in identifying, addressing and resolving problems.
5.6.6. The advisory council shall not review information related to specific patients, staffing, security, and medication storage and security.
5.6.7. The advisory council shall report any recommendations for the Quality Improvement Committee.
5.7. Quality Improvement Committee.
5.7.1. A member of the Quality Improvement Committee shall report to the governing board on an annual basis with regard to safety, case review, compliance and quality measures.
5.7.2. The Quality Improvement Committee shall consist of, at a minimum, the:
5.7.2.a. Administrator;
5.7.2.b. Medical Director;
5.7.2.c. Director of Nursing;
5.7.2.d. Registered Professional Nurse; and
5.7.2.e. Patient Care Assistant.
5.7.3. The Quality Improvement Committee will meet at least quarterly to:
5.7.3.a. Review both critical and noncritical incidents;
5.7.3.b. Address reports of and allegations of abuse and neglect;
5.7.3.c. Conduct case review;
5.7.3.d. Address grievances;
5.7.3.e. Establish standards and measurable outcomes, analyze outcome data as self-assessment;
5.7.3.f. Review of any recommendations submitted by the Advisory Council;
5.7.3.g. Provide feedback to the governing board; and
5.7.3.h. Identify problems or service deficits and develop plans to correct areas of concern.
5.7.4. The Quality Improvement Committee will conduct, at least quarterly, the following reviews:
5.7.4.a. Safety review;
5.7.4.b. Medication administration review; and
5.7.4.c. Security review.
5.8. Contractual Relationships.
5.8.1. The organization shall use written purchase of service agreements or written contracts with both general contractors and/or vendors and professional contractors of clinical services.
5.8.2. Purchase of non-clinical service or material contracts shall describe all significant terms and conditions including as appropriate:
5.8.2.a. Roles and responsibilities of participants;
5.8.2.b. Services to be provided;
5.8.2.c. Provisions for training and technical support as necessary;
5.8.2.d. Duration of the contract, including delineation of follow up services;
5.8.2.e. Methods for resolving disputes;
5.8.2.f. Documentation necessary for, and means of reporting to, funding or oversight bodies;
5.8.2.g. Conditions for termination; and
5.8.2.h. Expected outcomes as appropriate.
5.8.3. If the organization arranges externally or contractually for the provision of clinical services, the organization shall have a written agreement which specifies:
5.8.3.a. Roles and responsibilities of the organization and the contracting party;
5.8.3.b. Documentation required of the contracting individual or service with timelines for provision of the documentation;
5.8.3.c. Services to be provided;
5.8.3.d. Provision of appropriate liability or malpractice insurance either by the contractor or contracting party;
5.8.3.e. Procedures for exchange of information;
5.8.3.f. Definition of the patients to be served and the services to be provided;
5.8.3.g. Timelines for provision of service;
5.8.3.h. Methods for resolving disputes;
5.8.3.i. Terms of payment;
5.8.3.j. Assurances that the contracting party shall adhere to state and federal requirements of confidentiality; and
5.8.3.k. Expected outcomes as appropriate.
5.8.4. The organization shall ensure a complete personnel file on each contracted clinical employee and consultant who provides direct services to patients on site, including:
5.8.4.a. Evidence of clinical training;
5.8.4.b. Evidence of appropriate licensure or certification;
5.8.4.c. Evidence of malpractice or liability insurance as specified in the contract;
5.8.4.d. Evidence of ability to conduct business in the state of West Virginia; and
5.8.4.e. Evidence of state and federal fingerprint-based criminal background check.
5.8.5. If the organization contracts for professional services with a licensed practitioner who serves patients in his or her own location, the organization shall have a personnel file containing the following:
5.8.5.a. Evidence of clinical training;
5.8.5.b. Evidence of licensure;
5.8.5.c. Evidence of state and federal fingerprint-based criminal background check;
5.8.5.d. Evidence of liability insurance; and
5.8.5.e. Evidence of a license to operate a business in the State of West Virginia.
5.8.6. The organization shall ensure that contractual vendors are oriented to and adhere to the organization's policies and procedures regarding professional practices and confidentiality.
W. Va. Code R. § 71-16-6 Physical Facility
6.1. Facility Construction and Renovation.
6.1.1. Before construction or extensive renovation of a neonatal abstinence syndrome center begins, the program sponsor shall submit for approval a complete set of plans for the project to the state oversight agency.
6.1.2. The plans shall include the drawings and specifications for the architectural, structural, and mechanical design for the construction or renovation.
6.1.3. The Director shall advise the program sponsor in writing delivered by regular mail whether approval has been granted within 30 days from the date of receipt of the plans.
6.1.4. In the event the plans for the project are not approved, the Director shall set forth in writing the reasons for the disapproval and provide the program sponsor the opportunity to correct any deficiencies.
6.1.5. Construction or extensive renovation of a facility may not begin until the Director has issued final approval of the plans in writing delivered by regular mail.
6.1.6. All centers must meet all other requirements of applicable federal or state agencies.
6.2. Facility Security Requirements.
6.2.1. Only persons who are employed by the neonatal abstinence syndrome center, volunteers, patients, parents, legal representatives, or other persons designated as approved contractors or visitors are permitted entrance to the neonatal abstinence syndrome center.
6.2.2. All employees and volunteers must wear an identity badge with a picture and first name listed while on the premises;
6.2.3. All doors providing entrance and exit to the center and secure areas of the center must use mechanical and/or electronic locking mechanisms to best ensure the safety of the patients and staff;
6.2.4. Visitation hours must be established by the center for all visitors other than parents and/or the legal representative;
6.2.5. All visitors must present valid government-issued photo identification to be permitted entrance into the facility;
6.2.6. Facilities must have policies and procedures addressing what visitors may or may not bring into the center;
6.2.7. Visitors are not permitted in any area of the facility not specifically identified for visitors; and
6.2.8. Visitors are not permitted to be in any area of the facility without an escort.
6.3. Service Environment.
6.3.1. The center shall ensure all patients have the necessities to meet their basic daily needs.
6.3.2. The center shall provide each patient with a nursery room including at a minimum, a baby bed and a rocking chair to accommodate his or her individual needs.
6.3.3. The center shall provide adequate storage space to accommodate clothing and personal items.
6.3.4. The facility shall have a sprinkler system in accordance with state fire marshal requirements.
6.3.5. The facility shall have a fire alarm system installed in accordance with state fire marshal requirements.
6.3.6. The center shall ensure the basic needs of the patient are consistently met.
6.3.7. The center shall ensure the overall environment is clean, pleasant in appearance, and conducive to the development and treatment of the patient.
6.3.8. All temporary walls or items being used as physical barriers shall be firmly anchored so they pose no threat to the safety of the patient, personnel, or visitors.
6.3.9. The center shall ensure no strings, cords and hanging items are of no threat to the patients.
6.4. Laundry and Linens.
6.4.1. The center shall have written policies for handling, storing, processing, and transporting linens and other laundered goods in a manner to prevent the spread of infection.
6.4.2. The soiled linen room shall be one hour fire rated, have negative air that discharges directly to the outside, and have a hand wash sink in the room.
6.4.3. The center shall provide clean waterproof mattresses or mattress covers that are non-absorbent.
6.4.4. Sufficient supplies shall be available to center personnel to assure the cleanliness and comfort of each patient.
6.4.5. The center shall provide each patient with individual towels, washcloths, and bedding.
6.5. Nursing Equipment and Sterile Supplies.
6.5.1. The center shall have sufficient quantity and type of nursing equipment to meet the individual care needs for each patient.
6.5.2. All electrical patient care equipment shall be maintained, inspected and tested in accordance with the manufacture recommendations, and the applicable sections of the "National Fire Protection Association NFPA 99 Standard for Health Care Facilities."
6.5.3. The generator and all life safety and critical branch electrical circuits shall comply with the standards as identified in the "National Fire Protection Association NFPA 99 Standard for Health Care Facilities."
6.5.4. All equipment shall be maintained in accordance with the provisions of this rule.
6.5.5. Clean nursing equipment and sterile supplies shall be stored in a clean workroom or storeroom that does not permit patient or visitor access.
6.5.6. Sterile supplies shall not be stored under sink drains, in soiled utility rooms or in areas where contamination may occur.
6.5.7. Sterile supplies shall not be stored nor used beyond their dated shelf life.
6.5.8. Damaged supplies and utensils shall not be used and shall be disposed of properly.
6.6. Housekeeping and Maintenance.
6.6.1. The facility shall be constructed, maintained and equipped to protect the health and safety of patients, personnel, and the public.
6.6.2. The center shall establish and implement a maintenance program that assures that:
6.6.2.a. All equipment is operable and in safe working condition;
6.6.2.b. The interior and exterior of the building is safe; and
6.6.2.c. The grounds are maintained in a presentable condition free from rubbish and other health hazards of a similar nature.
6.6.3. The center shall establish and implement a housekeeping program and services that assures a clean, sanitary environment.
6.6.4. The center shall be kept free of insects, rodents and vermin by an effective pest control program.
6.6.5. Pesticides shall be applied only by an applicator certified by the West Virginia Department of Agriculture.
6.6.6. The center shall have sufficient supplies for housekeeping and maintenance properly stored and conveniently located to permit frequent cleaning of floors, walls, woodwork, windows, and screens, and to facilitate building and grounds maintenance. These supplies shall be stored in such a way as to prevent contact with patients or visitors.
6.7. Storage of Supplies.
6.7.1. All cleaning and maintenance supplies must be kept in their original package or container with their labels intact.
6.7.2. All cleaning and maintenance supplies must be kept sealed and locked in an area separate from patient care areas.
6.7.3. All cleaning and maintenance supplies must be used according to the manufacturer's instructions.
6.8. Construction, Additions, Renovations, and Other Standards.
6.8.1. The center shall be located within fifteen minutes of a hospital.
6.8.2. The center shall comply with the most current edition of the National Fire Protection Association (NFPA) standards for limited health care facilities.
6.8.3. The center shall comply with the most current edition of the state building code.
6.8.4. The center shall comply with all applicable provisions of the Americans with Disabilities Act (ADA).
6.8.5. The center shall submit a complete set of architectural, structural, and mechanical drawings, drawn to scale not less than one-eighth inch equals one foot, and shall be approved by the Director before construction begins.
6.8.5.a. This requirement applies to new construction, additions, renovations, or alterations to an existing center.
6.8.5.b. This requirement applies to alterations, renovations, and equipment modifications or additions which may necessitate changes to the center's floor plan, impact on safety, or require the services of a design professional
6.8.5.c. The Director shall approval all plans prior to beginning construction.
6.8.5.d. The submitted drawing and specifications shall be prepared, signed, and sealed by a person registered to practice architecture in the state of West Virginia.
6.8.5.e. The project shall be inspected during the construction phase by a registered professional architect or his or her representative.
6.8.5.f. The requirement for a registered architect may be waived by the Director depending on the scope of the project.
6.8.5.g. The center shall submit complete architectural drawings and specifications for any alterations, renovations, and equipment modifications or additions which may necessitate changes to the center's floor plan, impact on safety, or require the services of a design professional, and shall be approved by the Director prior to beginning any construction.
6.8.5.h. Minor renovations that do not alter floor plans, impact on safety or require the services of a design professional may not require the approval of the Director.
6.8.5.i. A performance statement shall be obtained by the owner from the builder and design professional of a proposed center stating the builder has followed the plans which are on file with and approved by the Director.
6.8.6. All new facilities, additions, and alterations shall be inspected by the Director and shall have the Director's approval in writing prior to admitting patients.
6.8.7. The center shall request in writing a pre-opening inspection no less than 30 days prior to the proposed opening date.
6.8.8. Unless substantial construction is started within one year of the date of approval of final drawings, the owner or architect shall secure written notification from the Director that the plan approval for construction is still valid and in compliance with this rule.
6.9. Site Characteristics.
6.9.1. Sites for all centers and sites for additions to existing centers shall be inspected by the Director prior to site development and the completion of final drawings and specifications.
6.9.2. The site shall be located in an environment that is free from flooding and excessive noise.
6.9.3. The site shall not be exposed to excessive smoke, foul odors or dust.
6.9.4. The site shall have good drainage, approved sewage disposal, an approved potable water supply, electricity, telephone and other necessary utilities available on or near the site.
6.9.5. The site shall be accessible to physicians, emergency services and other necessary services.
6.9.6. Accessibility and transportation to the site and the center shall be facilitated by paved, hard-surfaced, all-weather roads which are kept passable at all times.
6.9.7. The road shall connect directly to a paved hard surface highway.
6.9.8. Grades to all sites shall permit access for emergency vehicles and firefighting equipment in all weather conditions.
6.9.9. Parking areas shall be sufficient according to the latest edition of the Guidelines for Design and Construction of Health Care Facilities according to the Facilities Guidelines Institute and published by the American Society for Healthcare Engineering at http://fgiguidelines.org/.
6.9.10. Local building codes and zoning restrictions shall be followed.
6.9.11. The owner, or his or her designee, shall maintain documentation certifying compliance signed by local fire, building and zoning officials, and this documentation shall be available for review.
6.9.12. Bed capacity may only be increased after the Director has determined the center's physical facilities will support the increase and there is compliance with other requirements, including certificate of need requirements.
6.10. Infection Control.
6.10.1. The neonatal abstinence syndrome center shall establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment and to help prevent the development and transmission of disease and infection.
6.10.2. The center shall establish and implement an infection control program to:
6.10.2.a. Investigate, control, and prevent infection in the center;
6.10.2.b. Determine what procedures, such as isolation, shall be applied to a patient, and only to the extent required to protect the patient and others; and
6.10.2.c. Maintain a record of incidents, investigations, and corrective actions related to infections. This record shall provide analysis of causal factors and identification of preventative actions to be implemented.
6.10.3. The center shall prohibit employees, volunteer and contracted personnel with a communicable disease or infected skin lesions from direct contact with patients and their food, if direct contact will transmit the disease.
6.10.4. The center shall require staff to wash or sanitize their hands after each direct contact and after engaging in any activity for which hand washing or sanitizing is indicated by accepted standards of professional practice.
6.10.5. Personnel shall handle, store, process and transport linens in order to prevent the spread of infection.
6.10.6. Infections, including culture results, shall be reported to applicable county health departments according to local, county or state laws, rules, and regulations.
6.11. Solid Waste and Bio-Hazard Waste Disposal.
6.11.1. The center shall have procedures and contracts for disposing of bio-hazardous waste.
6.11.2. Chain of custody receipts and forms shall be maintained by the center for one year.
6.11.3. The center shall have procedures for disposing of non-hazardous medical waste and similar waste that is not considered hazardous in a safe sanitary manner.
6.11.4. Solid waste, including garbage and refuse, shall be removed from the building daily or more often as necessary.
6.11.5. All garbage and refuse shall be stored in durable, covered, leak-proof and vermin-proof containers or dumpsters.
6.11.6. The containers and dumpsters shall be kept clean of all residue accumulation.
6.11.7. All garbage and refuse shall be disposed of in accordance with the applicable provisions of state and local law and rules governing the management of garbage and refuse.
6.12. Water Supply.
6.12.1. The facility shall have a water supply that is safe and of sufficient capacity to meet the patients' needs and the requirements of the sprinkler system.
6.12.2. The facility shall have as its source of water and a public water system that complies with West Virginia Department of Health Legislative Rule, Public Water Systems, W. Va. Code R. §§64-3-1, et seq., or water well that complies with West Virginia Department of Health Legislative Rule, Water Well Regulations, W. Va. Code §§64-19-1, et seq. and Water Well Design Standards Legislative Rule, W. Va. Code §§64-46-1, et seq.
6.12.3. The facility shall have hot and cold running water in sufficient supply to meet the needs of the patients.
6.12.4. Hot water distribution systems serving patient care areas shall be recirculating to provide continuous hot water at each hot water outlet.
6.12.5. The temperatures shall be appropriate for comfortable use but shall not exceed 110° Fahrenheit.
6.12.6. The center shall have written agreements with water suppliers to deliver water when there is a loss of the normal supply.
6.13. Sewage Disposal.
6.13.1. Sewage disposal shall be in accordance with West Virginia Department of Health Legislative Rule, Sewage Systems, Sewage Treatment Systems, and Sewage Tank Cleaners Legislative Rule, W. Va. Code §§64-9-1, et seq., and West Virginia Department of Health Legislative Rule, Sewage Treatment and Collection System Design Standards Legislative Rule, W. Va. Code §§64-47-1, et seq.
6.13.2. The sewage system shall be adequate to meet the center's needs.
6.13.3. Sewage systems shall be kept in good working order and shall be properly operated and maintained.
6.14. Fire Safety, Disaster and Emergency Preparedness.
6.14.1. The administrator shall provide evidence of the center's compliance with applicable rules of the State Fire Commission.
6.14.2. Any variation to compliance with the fire code shall be coordinated with the state oversight agency and approved in writing by the State Fire Marshal.
6.14.3. The center shall have a written internal and external disaster and emergency preparedness plan approved by the Director that sets forth procedures to be followed in the event of an internal or external disaster or emergency that could severely affect the operation of the center.
6.14.4. The disaster and emergency preparedness plan shall have procedures to be followed in the event of the following: fire, missing patient, high winds, tornadoes, bomb threats, utility failure, flood and severe winter weather.
6.14.5. The disaster and emergency preparedness plan shall include at least an alternate shelter agreement, an emergency transportation policy, and an emergency food supply list that will provide nutrition for all patients residing in the center for a minimum 72 hours.
6.14.6. The disaster and emergency preparedness plan shall be developed and maintained with the assistance of qualified fire safety and other emergency response teams.
6.14.7. There shall be copies of the disaster and emergency preparedness plan at all staff stations or emergency control stations.
6.14.8. The disaster and emergency preparedness plan shall be located in an area that allows visual contact at all times. The center staff shall know the location of the plan at all times.
6.14.9. The local fire department shall be provided with a floor and disaster plan and be given opportunities to become familiar with the center.
6.14.10. The center shall have a written plan and procedures for transferring casualties and uninjured patients.
6.14.11. These procedures shall include the transfer of pertinent patient records including identification information, diagnoses, allergies, advance directives, medications and treatments, and other records needed to ensure continuity of care.
6.14.12. The center shall have written instructions regarding the location and use of alarm systems, signals and firefighting equipment.
6.14.13. The center shall have information regarding methods of fire containment.
6.14.14. The center shall have written instructions regarding accessibility for evacuation routes.
6.14.15. The disaster and emergency preparedness plan shall be reviewed and updated by the administrator or his or her designee on an annual basis and signed and dated by the administrator or his or her designee to verify the plan was reviewed.
6.14.16. Emergency call information shall be conspicuously posted near each telephone in the center, exclusive of telephones in patient rooms. This information shall include at least the telephone numbers of the fire department, the police, and ambulance service and other appropriate emergency services; and key personnel telephone numbers, including at least the following:
6.14.16.a. The administrator;
6.14.16.b. The Director of Nursing or the registered professional nurse on duty;
6.14.16.c. The maintenance director or safety director;
6.14.16.d. The physician on-site or on-call; and
6.14.16.e. Other appropriate personnel.
6.14.17. The center shall have at least one non-coin-operated telephone or one extension on each distinct unit, section or wing of the center and additional telephones and extensions if needed to summon help in case of an emergency.
6.14.18. The facility shall include an area of sufficient space to hold the congregate population with a heat source that is supplied with emergency electrical power from the emergency power source.
6.14.19. The center shall operate an internal disaster preparedness program that includes orientation and ongoing training and drills in procedures and specific assignments.
6.14.20. The internal disaster plan shall be rehearsed at least annually.
6.14.21. Fire drills shall be held at least quarterly for each shift.
6.14.22. The center shall keep on file for at least two years, a dated written report and an evaluation of each disaster rehearsal and fire drill conducted on the premises.
W. Va. Code R. § 71-16-7 Patient Rights and Parent/Legal Representative Rights and Responsibilities
7.1. Policies and Procedures.
7.1.1. The governing body of the center shall establish written policies and procedures regarding the rights and responsibilities of patients and legal representatives. The policies adopted shall be consistent with the provisions of this rule.
7.1.2. Through the administrator, the governing body is responsible for on-going development of and adherence to procedures implementing policies regarding the rights and responsibilities of patients.
7.1.3. The center shall make its policies and procedures available upon request.
7.1.4. The center shall have a non-discrimination policy, a patient bill of rights and a family bill of rights.
7.1.5. Prominently display a copy of the patient’s rights and responsibilities, the names, addresses, and telephone numbers of all associated state agencies including licensing agencies.
7.2. Civil Rights.
7.2.1. A center shall not segregate a patient, give separate treatment, restrict the enjoyment of any advantage or privilege enjoyed by others in the center, or provide any aid, care services, or other benefits that are different from or are provided in a different manner from those provided to others in the center on the grounds of race, color, religion or national origin, age, disability, gender or other protected class.
7.2.2. A center shall not deny admission to a prospective patient on the grounds of race, religion or national origin, age, disability, gender or other protected class.
7.3. Abuse, Neglect, and Misappropriation of Property.
7.3.1. All patients have the right to be free from verbal, sexual, physical, and mental abuse, financial exploitation, discrimination, denial of privileges, corporal punishment, and involuntary seclusion.
7.3.2. The center shall develop and implement written policies and procedures that prohibit neglect, abuse of patients, and misappropriation of patient property. The policy and procedures shall address the screening, training, prevention, identification, investigation, protection, reporting and response of allegations of patient neglect, abuse, and misappropriation of patient property.
7.3.3. The center shall ensure all alleged violations involving mistreatment, abuse, neglect, and misappropriation of property, including injuries of unknown origin are reported in accordance with State law.
7.3.4. The center shall ensure all alleged violations involving mistreatment, abuse, neglect, and misappropriation of property, including injuries of unknown origin are reported to the Director immediately, and no later than within 24 hours. In addition, the facility shall submit a five-day follow-up report. These shall be submitted on the form developed by the Director.
7.3.5. The center shall document that all alleged violations are thoroughly investigated and shall take appropriate steps to prevent further potential abuse while the investigation is in progress.
7.3.6. The results of all investigations shall be reported to the administrator or his or her designated representative and to other officials in accordance with State law, including the Director, within five working days of the incident, and if the alleged violation is verified appropriate corrective action shall be taken.
7.3.7. The center provides all employees with information regarding abuse, neglect, and misappropriation of property and related reporting requirements, including prevention, intervention and detection. This shall occur during orientation and annually as a continuous staff development program.
7.3.8. The center shall protect patients from abuse, neglect and misappropriation of property during the investigation of any allegations.
7.3.9. The center must have policies and procedures in place to protect patients from abuse, neglect, and misappropriation of property of all forms, whether from staff, visitors, or any other persons.
7.3.10. The center must have policies and procedures in place to identify the mandatory reporting requirements of abuse and neglect in accordance with state law and regulations.
7.4. Legal Representatives.
7.4.1. The center shall maintain in the patients' medical record verification of the authority of the legal representative and shall provide the legal representative with a general description of the scope of the legal representative's decision-making authority.
7.4.2. The center shall inform the parents and/or legal representative of his or her rights and responsibilities under the provisions of this rule. All rules governing parental and/or legal representative conduct must be fully explained prior to or at the time of admission and within 30 days of any changes. The parent and/or legal representative must acknowledge receipt of this information in writing and shall be permanently retained by the center in accordance with this rule.
7.4.3. Parents and/or legal representative must have the right to be informed of the patient's medical condition, care and treatment.
7.4.4. Parents and/or legal representatives have the right to voice all grievances without discrimination or reprisal and have prompt resolution.
7.5. Duties of Staff.
7.5.1. All staff and personnel of the center shall ensure that every patient under their care is accorded with all rights set forth in this rule.
7.5.2. The center staff shall at least annually receive training in the proper implementation of patient rights policies under the provisions of this rule.
7.5.3. When the center's staff limits or restricts the rights of a patient for medical reasons, the staff will document the specific reasons for the limitation or restriction in the patient's medical record, and the specific period of time the limitation or restriction will be in place. The patient or the patient's legal representative shall be notified of the limitation or restriction.
7.6. Informed Consent.
7.6.1. The center must have a policy to address how and when informed consent will be provided to the parents and/or legal representative.
7.6.2. Legal representatives shall be informed of their rights and responsibilities in writing, prior to admission.
7.6.3. Legal representatives shall be informed of the policies and procedures governing the facility.
7.6.4. Legal representatives shall be clearly informed of the responsibilities of the neonatal abstinence center for the care of the patient.
7.6.5. Legal representatives shall be clearly informed in writing of the costs of services to be provided and of any required services or procedures not included in the charge of the center.
7.7. Participate in Care Planning.
7.7.1. Legal representatives shall have the right to participate in the development of the patients' care plans.
7.7.2. Efforts shall be made by the center to accommodate the family and/or legal representative when scheduling all care planning meetings and reviews.
7.8. Confidentiality and Access to Records and Information.
7.8.1. The center shall ensure confidential treatment of each patient's personal and medical records. The center may approve or deny their release to any person outside the center, except in the case of his or her transfer to another health care institution, as required by law, or for a third-party payment contract.
7.8.2. Upon request, the center shall provide to each patient and legal representative access to all of his or her records, including current clinical records, within 24 hours of the request. Records may only be available during normal business operating hours, excluding weekends and holidays.
7.8.3. The center may charge a fee for providing copies of the patient's medical record in accordance with W. Va. Code §§16-29-1, et seq. The facility will provide the photocopied materials to the patient or legal representative within two working days of the request.
7.8.4. Any person shall have the right to review the most recent and past state and federal inspection and complaint reports with the center's plan of correction.
7.8.5. The center shall make the results of surveys and inspections, as well as plans of correction, available for examination in a place readily accessible to patients and legal representatives and shall post a notice of their availability.
7.8.6. The center may charge an amount not to exceed $0.25 per page for copies of reports requested by any person.
7.8.7. The center shall adopt policies and procedures that will protect the confidentiality of the patient as it relates to use of the patient's name and photographs.
7.9. Visitation.
7.9.1. The neonatal abstinence center shall have a policy that addresses visitation responsibilities and requirements for parents, legal representatives, and family. The policy must address, at a minimum, the following:
7.9.1.a. Regular visitation hours;
7.9.1.b. Off-hours visitation to accommodate working parents;
7.9.1.c. Visitor identification;
7.9.1.d. Monitoring and documenting the visitation;
7.9.1.e. Hand washing and protective clothing covers for visitors when handling patients;
7.9.1.f. Limiting the items (bags, purses, jackets) visitors may take into the center and/or into the visitation area;
7.9.1.g. Prohibiting illegal substances on the premises of the center;
7.9.1.h. Prohibiting prescription and non-prescription medications and supplements on the premises of the center;
7.9.1.i. Prohibiting weapons of any kind on the premises of the center;
7.9.1.j. Identifying where visitation is permitted within the center;
7.9.1.k. Identifying circumstances that may prohibit or limit visitation rights of parents, legal representatives and/or family;
7.9.1.l. Detailing how visitors will be identified, logged in and monitored;
7.9.1.m. Informing and educating visitors of the visitation policy and other relevant policies;
7.9.1.n. Handling visitors that do not abide by the visitation policies and other relevant policies of the center.; and
7.9.1.o. Addressing any medical needs of parents or guardians who stay overnight with their infant.
7.9.2. The center shall provide all parents, legal representatives, and family with a copy of the center's visitation policy.
7.9.3. All visitors have the responsibility to abide by the center's visitation policy.
7.9.4. The center shall have posted and consistent visitation hours with the exception of working parents who may visit during off hours set by the center.
7.9.5. The center must set hours for quiet time to maintain dimmed lights and a quiet environment.
7.9.6. Parents and/or the legal representative must be given a form of identification that matches their baby's identification wrist or ankle band.
7.10. Refusal of Treatment and of Experimental Research.
7.10.1. A parent and/or legal representative have the right to refuse treatment and to refuse to participate in experimental research unless mandated by court order.
7.10.2. When a refusal of treatment occurs, the center shall assess the reasons for the refusal, clarify and educate the parent and/or legal representative as to the consequences of the refusal, offer alternative treatments, and continue to provide all other services.
7.10.3. When refusal of treatment is assessed by the physician to place or potentially place the patient in immediate jeopardy or harm, the patient shall be transported to the hospital. The Director and child protective services shall be notified.
7.10.4. The center shall maintain documentation in the patient's medical record of the treatment refusal and the actions taken.
7.10.5. The parent and/or legal representative shall have the opportunity to refuse to participate in experimental research prior to the start of the research. The center shall inform a parent and/or legal representative of the patient being considered for participation in experimental research of the nature of the experiment and of the possible consequences for participation.
7.10.6. The center shall not transfer or discharge a patient for refusing treatment unless criteria for transfer or discharge are met under the provisions of this rule.
7.11. Complaint or Grievance Procedures.
7.11.1. The center must have a complaint and grievance policy in place to ensure parents, legal representatives and/or family have a procedure to resolve grievances and complaints in a timely manner.
7.11.2. The policy must address how the center will manage the complaint or grievance process in a timely and objective manner.
7.11.3. The policy must address how the center will inform the parents, legal representatives and/or family on the process for filing a complaint with the Office of Health Facility Licensure and Certification.
7.11.4. The policy must address how the center will inform the parents, legal representatives and/or family on the process to report suspected or alleged abuse and neglect to the child protective services and the Office of Health Facility Licensure and Certification, including address and phone number for filing complaints.
7.11.5. Information about how to file a complaint with the child protective services and the Office of Health Facility Licensure and Certification shall be posted in locations easily accessible by staff and visitors.
7.11.6. The policy must address how the center will inform parents, legal representatives and/or family on the process to report fraud, waste and abuse to the appropriate state agencies.
7.11.7. The policy must address how the center will inform parents, legal representatives and/or family on the process to report suspected crimes to law enforcement.
7.11.8. The policy must be posted in a location that is accessible to visitors.
7.12. Issues with Parental Participation.
7.12.1. If a biological mother is unwilling or refuses to visit or participate in the care of her baby, the center's staff will document each attempt to reach the biological mother, work to include other family members, and report all attempts and documentation to the protective services agency. The staff must document their attempts to assist the biological mother, including linkage and referral to necessary services and supports, including addiction treatment.
7.12.2. If the biological mother is unable to care for her baby, the center will investigate to determine the underlying cause of her inability and take appropriate steps to help her if it is her desire to participate in the care of her patient. This may include factors such as transportation issues, employment during visitation, disability, or other mitigating factors.
7.12.3. If a parent arrives at the center, and he or she is clearly under the influence of drugs or alcohol, the parent will be escorted from the facility, and the case record will be documented. This requirement is applicable to any visitor to the center. The center must have policies and procedures to identify how these situations will be handled.
W. Va. Code R. § 71-16-8 Incidents and Incident Reporting
8.1. Critical Incidents.
8.1.1. The center shall provide an environment that remains free from accident hazards as possible.
8.1.2. The center shall provide an environment where each patient receives adequate supervision.
8.1.3. Critical incidents are incidents resulting in or the potential for significant harm or death to a patient. Critical incidents include, but are not limited to:
8.1.3.a. Allegations of abuse, neglect, mistreatment, misappropriation;
8.1.3.b. Medication errors;
8.1.3.c. Removal of a staff member from duty pending an investigation;
8.1.3.d. Behavior likely to lead to serious injury or significant property damage;
8.1.3.e. Involvement with law enforcement;
8.1.3.f. Possession of illicit substances, including alcohol, by anyone entering the facility;
8.1.3.g. Possession of a weapon by anyone entering the facility;
8.1.3.h. Injuries requiring medical treatment;
8.1.3.i. Reaction to medication or food requiring medical treatment;
8.1.3.j. Dietary errors with a negative outcome;
8.1.3.k. Removal of a patient from the nursery without authorization;
8.1.3.l. Fire;
8.1.3.m. Drug diversion;
8.1.3.n. Incident due to a lack of employee oversight;
8.1.3.o. Injuries of unknown origin;
8.1.3.p. Unusual occurrences, or
8.1.3.q. Any incident that has a significant and negative impact on the patient.
8.2. Critical Incident Reporting and Investigation.
8.2.1. The center shall submit a written report to the state oversight agency within 24 hours of any critical incident or accident in which a patient is involved, either inside or outside of the center. The report shall be documented on a form provided by the Director.
8.2.2. The report shall include the:
8.2.2.a. Date of the occurrence;
8.2.2.b. Time of the occurrence;
8.2.2.c. Place of the occurrence;
8.2.2.d. Details of the occurrence; and
8.2.2.e. Date and signature of the reviewing physician.
8.2.3. Maintains a record of critical incidents, investigations, and corrective actions related to infections. The records shall provide for analysis of causal factors and identification of preventative actions to be implemented.
8.2.4. Non-critical incidents that do not rise to the level of a critical incident shall be documented and monitored by the facility for trends and quality improvement opportunities.
W. Va. Code R. § 71-16-9 Staffing
9.1. Medical Director.
9.1.1. The center shall designate, in writing, a physician accountable to the governing body to serve as medical director.
9.1.2. The center shall have a medical director to ensure medical care provided to patients is adequate and appropriate.
9.1.3. The medical director shall be certified by the American Academy of Pediatrics with a specialty in Pediatrics with at least three years of experience in the medical care of patients with neonatal abstinence syndrome.
9.1.4. The medical director is responsible for:
9.1.4.a. Reviewing policies, procedures, and guidelines to ensure adequate, comprehensive services;
9.1.4.b. Coordinating medical care provided in the center, so it is adequate and appropriate;
9.1.4.c. Assisting in the evaluation of credentialing and re-credentialing of licensed practitioners to determine whether they will be authorized to practice within the organization by recommendation;
9.1.4.d. Approving in-service training programs; and
9.1.4.e. Reviewing and evaluating incident reports or summaries of incident reports, identifying hazards to health and safety, and making recommendations as needed.
9.2. Director of Nursing.
9.2.1. The neonatal abstinence syndrome center shall employ a Director of Nursing with the following minimum qualifications:
9.2.1.a. The Director of Nursing shall hold a current and unencumbered license from the West Virginia Board of Examiners for Registered Professional Nurses; and
9.2.1.b. The Director of Nursing shall have at least two years of experience in the medical care of neonatal or pediatric patients.
9.2.2. The Director of Nursing shall be responsible for:
9.2.2.a. Assisting in the development of performance evaluations for all staff reporting to the Director of Nursing;
9.2.2.b. Supervising day-to-day clinical operations of the center, including but not limited to practice standards and quality improvement;
9.2.2.c. Developing and implementing programs and related materials based on best practices in collaboration with the Medical Director;
9.2.2.d. Assure competency and consistency in care and guide clinical practice through resource development, educational opportunities, consultation and research;
9.2.2.e. Developing and monitoring benchmark standards and tools to evaluate and achieve success in clinical objectives;
9.2.2.f. Reviewing the effectiveness of practice modalities and developing performance measures and indicators to assess success.
9.2.2.g. Continuously monitoring outcomes and approaches to ensure quality performance and outcomes;
9.2.2.h. Assisting in the development of educational materials to address deficiencies in the operation of the center; and
9.2.2.i. Coordinating outreach and education to referring centers or entities.
9.3. Registered Professional Nurse.
9.3.1. The center shall employ registered professional nurses to oversee and manage the care of patients being assessed and treated for neonatal abstinence syndrome.
9.3.2. There shall be one registered professional nurse per every four patients at all times. There must be a minimum of two licensed nurses on each shift, one of which must be a registered professional nurse.
9.3.3. Registered professional nurses shall hold a current and unencumbered license from the West Virginia Board of Examiner's for Registered Professional Nurses.
9.3.4. Registered professional nurses shall have a current cardiopulmonary resuscitation (CPR) certification.
9.3.5. Registered professional nurses shall have Neonatal Advanced Life Support (NALS) or S.T.A.B.L.E. certification (https://stableprogram.org/) within one year of employment.
9.3.6. Registered professional nurses shall be responsible for:
9.3.6.a. Overseeing care and treatment of patients provided by personal care assistants;
9.3.6.b. Checking neonatal abstinence syndrome symptoms score once per shift, and as needed;
9.3.6.c. Participating in physician rounds for all assigned patients;
9.3.6.d. Administering medications according to physician's orders;
9.3.6.e. Verifying and documenting administration and dosage of all medications, including opiates, administered by another registered professional nurse;
9.3.6.f. Monitoring for adherence to feeding and treatment protocols;
9.3.6.g. Reporting all patient medical concerns to the physician;
9.3.6.h. Reporting all social concerns to the social worker;
9.3.6.i. Assuming care and treatment of patients requiring closer monitoring;
9.3.6.j. Communicating with parents and caregivers in a non-judgmental environment;
9.3.6.k. Maintaining confidentiality in all matters pertaining to patient and family care and treatment;
9.3.6.l. Providing education and support to parents and caregivers; and
9.3.6.m. Initiating and updating the plan of care.
9.4. Social Worker.
9.4.1. Social worker educational requirements must hold an unencumbered and valid West Virginia Social Work license.
9.4.2. Social worker must have three years of experience in working with people with substance abuse disorders and/or patient welfare.
9.4.3. Social worker shall be responsible to:
9.4.3.a. Coordinate and collaborate with the social work departments at all admitting hospitals;
9.4.3.b. Visit with and provide information to parents about the center;
9.4.3.c. Coordinate and give tours of the center to parents;
9.4.3.d. Work with the registered professional nurse during the admission process;
9.4.3.e. Review the center rules with parents;
9.4.3.f. Work with families to identify the existing needs and strengths for providing care;
9.4.3.g. Introduce the family to the clinical team at the center;
9.4.3.h. Ensure all families receive necessary training;
9.4.3.i. Provide parent and family training for non-medical issues;
9.4.3.j. Gather and record information regarding the family and patient social status;
9.4.3.k. Be the liaison to Patient Protective Services;
9.4.3.l. Help identify patients who should be remanded into state custody;
9.4.3.m. Coordinate local substance abuse prevention programs;
9.4.3.n. Prepares and maintains records for the patient's chart regarding social and parental strengths and needs; and
9.4.3.o. Meet regularly with the Director of Nursing and registered professional nurses to discuss patient and family care needs.
9.5. Personal Care Assistants.
9.5.1. The facility may employ personal care assistants to care for patients, including bathing, feeding, diapering, therapeutic handling and scoring neonatal abstinence syndrome symptoms that do not require an assessment.
9.5.2. Personal care assistants shall not be assigned to more than three patients.
9.5.3. Personal care assistants shall meet the following educational requirements:
9.5.3.a. A high school diploma, or equivalent; and
9.5.3.b. A current Neonatal Advanced Life Support (NALS) or S.T.A.B.L.E. certification within one year of employment.
9.5.4. The center shall provide comprehensive orientation to each personal care assistant at a minimum to:
9.5.4.a. Provide an in-depth understanding of all policies and procedures of the center;
9.5.4.b. Report allegations abuse, neglect, misappropriation and fraud;
9.5.4.c. Report drug diversion concerns;
9.5.4.d. Become proficient in therapeutic handling; and
9.5.4.e. Become proficient in neonatal abstinence syndrome symptom scoring.
9.5.5. Personal care assistants shall be responsible for:
9.5.5.a. Caring for patients with neonatal abstinence syndrome under the direct supervision of a registered professional nurse;
9.5.5.b. Providing general patient care including, vital signs, bathing, feeding, and diapering.
9.5.5.c. Maintaining a low stimulus environment at all times;
9.5.5.d. Scoring patients using a neonatal abstinence syndrome scoring method;
9.5.5.e. Using therapeutic handling to comfort and decrease stimulus;
9.5.5.f. Directing any concerns to the registered professional nurse immediately;
9.5.5.g. Maintaining confidentiality in all matters pertaining to patient and family care and treatment;
9.5.5.h. Documenting care provided in the patient's chart; and
9.5.5.i. Reporting end of shift status to the registered professional nurse.
9.6. Volunteers.
9.6.1. All volunteers are subject to the criminal background check requirements under the provisions of this rule.
9.6.2. No one under the age of 18 may volunteer.
9.6.3. Each volunteer shall receive training in therapeutic handling and the characteristics of neonatal abstinence syndrome.
9.6.4. Volunteers may only perform tasks related to therapeutic handling, housekeeping, and clerical duties.
9.7. Staffing Ratios.
9.7.1. The center shall maintain a personal care assistant staffing ratio to meet the needs of the patients.
9.7.2. Employees assigned to provide care to patients on a specified unit, including nursing staff, may be included in the employee to patient ratio.
9.7.3. Employees assigned to supervisory duties, including nursing supervisor, or those duties that cause them to be away from the unit may not be included in the count.
9.7.4. There shall be one registered professional nurse per every four patients at all times. There must be a minimum of two licensed nurses on each shift, one of which must be a registered professional nurse, with the ability to increase the ratio when needed.
9.8. Staff Training and Development.
9.8.1. The center shall ensure all patient care employees are specifically trained to meet the needs of the patients with neonatal abstinence syndrome.
9.8.2. All patient care employees shall be trained within the first 30 days of employment on basic patient care, and on an ongoing annual basis.
9.8.3. At a minimum, all patient care employees shall be trained in:
9.8.3.a. Patient development;
9.8.3.b. Neonatal Advanced Life Support (NALS) or S.T.A.B.L.E. within one year of employment;
9.8.3.c. First aid;
9.8.3.d. Basic patient care; and
9.8.3.e. The effects of neonatal abstinence syndrome on the patient.
9.8.4. Prior to completion of the training, the new patient care employees shall be scheduled to work with only fully trained employees.
9.9. Personnel Records.
9.9.1. The center shall maintain a confidential personnel record for each employee containing the following information:
9.9.1.a. A dated application;
9.9.1.b. Reference verification;
9.9.1.c. Evaluations of work performance;
9.9.1.d. Tuberculosis screening prior to hire and every five years;
9.9.1.e. Current license, registration, or certification status if applicable to the job;
9.9.1.f. A summary of the employees’ in-service training for the previous two years;
9.9.1.g. Any center specific required forms;
9.9.1.h. A job description signed by the employee; and
9.9.1.i. Records required to be retained for criminal background checks as defined by the provisions of this rule.
9.9.2. The center shall maintain a confidential personnel record for each volunteer containing the following information:
9.9.2.a. A dated application;
9.9.2.b. Reference verification;
9.9.2.c. Evaluations of work performance;
9.9.2.d. Tuberculosis screening prior to hire and every five years;
9.9.2.e. Current license, registration, or certification status, if applicable to the job;
9.9.2.f. A summary of the volunteer's in-service training for the previous two years;
9.9.2.g. Any center specific required forms;
9.9.2.h. A job description signed by the volunteer; and
9.9.2.i. Records required to be retained for criminal background checks as defined by the provisions of this rule.
9.10. Criminal Background Checks. The neonatal abstinence syndrome center shall be subject to the provisions of the W. Va. Code §§16B-15-1, et seq., and W. Va. Code R. §§71-11-1, et seq.
W. Va. Code R. § 71-16-10 Admission, Discharge, and Transition
10.1. Admission.
10.1.1. A center may accept admission under the following criteria:
10.1.1.a. The patient is recommended or referred by physician;
10.1.1.b. The patient is in stable condition;
10.1.1.c. The patient has a diagnosis of neonatal abstinence syndrome without other unrelated health conditions; and
10.1.1.d. The patient has an adjusted age of 36 weeks of gestation if born prematurely and is under the age of four months old.
10.1.2. The center shall have policies and procedures detailing the admission process.
10.1.3. The center shall have policies and procedures detailing the eligibility criteria for admission to the facility.
10.1.4. Each parent must sign a discharge preparation agreement upon admission acknowledging the understanding their responsibilities for working towards discharge of their baby. Parents must agree to, including but not limited to, the following:
10.1.4.a. Visit their patient at a frequency determined by the physician and the parents;
10.1.4.b. Participate in the care of the patient while present;
10.1.4.c. Learn the patient's stress cues and how to address them;
10.1.4.d. Learn and practice the minimal stress protocol for the patient experiencing withdrawal;
10.1.4.e. Attends parenting classes provided or arranged for by the center;
10.1.4.f. Attends weekly or bi-weekly meetings with the social worker, nursing staff and, when necessary, the physician.
10.1.4.g. Participate in education provided regarding discharge; and
10.1.4.h. Provide contact information where they can be reached at any time.
10.2. Discharge.
10.2.1. The social worker will oversee the discharge process with protective services or the legal representative with the appropriate legal documentation.
10.2.2. Discharge planning shall begin upon admission.
10.2.3. The family and/or legal representative shall be actively involved in the discharge planning.
10.2.4. Discharges must have a physician's order.
10.2.5. Situations for Appropriate Discharge.
10.2.5.a. The patient achieves the goals of his or her plan of care and no longer needs care and treatment outside of the home;
10.2.5.b. The patient reaches the maximum benefit from the services of the center;
10.2.5.c. The patient no longer meets the eligibility criteria; or
10.2.5.d. The patient has needs exceeding the resources of the center.
10.2.6. Discharge Criteria:
10.2.6.a. The patient must meet the following criteria prior to discharge from the center:
10.2.6.a.1. The patient shall be weaned off pharmacological interventions for at least 72 hours;
10.2.6.a.2. The patient shall have a neonatal abstinence syndrome score on an average of less than 8 or may be discharged with a higher average score at the discretion of the physician; and
10.2.6.a.3. Clearance by child protective services, if applicable.
10.2.6.b. Parents and/or legal representatives will meet criteria on the Parental Discharge Agreement and receive clearance from protective services for discharge.
10.2.6.c. Parents and/or legal representatives will receive instruction for therapeutic handling.
10.2.6.d. Parental education will be an ongoing process throughout the patient's hospitalization treatment.
10.2.6.e. All caregivers are required to receive training on the:
10.2.6.e.1. Period of excessive crying;
10.2.6.e.2. Caring for drug exposed patients;
10.2.6.e.3. Therapeutic handling; and
10.2.6.e.4. Discharge and aftercare.
10.2.7. Discharge Needs and Aftercare.
10.2.7.a. An assessment shall be completed by the center to determine whether the patient has access to appropriate baby items for daily care in the home.
10.2.7.b. An assessment shall be completed by the center to determine whether the patient has access to health, medical, nutritional, social, crisis, and emergency support in the home.
10.2.7.c. Referrals shall be made to connect the patient and their caregiver with the needed in-home care and support to meet their needs.
10.2.7.d. Patients shall be referred to all appropriate community-based support by the date of discharge as part of the after-care plan.
10.2.8. Discharge for Going Home with a Person other than a Biological Parent.
10.2.8.a. The legal representative must sign a Discharge Authorization form. The form must state the name of the person the patient is to be released to (including the father or other relative), date, and a form of identification (copied). The completion of the form must be witnessed.
10.2.8.b. Check the identification of the person picking up the patient. Identification must correspond with the name given on the Discharge Authorization form. If the patient is being held in custody of protective services, there must be an additional release form in the chart and the protective services representative must be present.
10.2.8.c. No patient is to be discharged to any person, other than the biological parent or legal representative, without signed consent unless the patient is in custody of the Department of Human Services.
10.2.8.d. The person picking up the patient must have all the appropriate legal documents deemed appropriate by the social worker of the facility.
10.2.8.e. Removal of the patient from the center shall only take place after all legal documents are signed and approved by the social worker of the facility.
10.2.8.f. The center's registered professional nurse will accompany the patient to the motor vehicle of the person picking up the patient and document patient was secure in an approved rear-facing car seat.
10.2.8.g. Document to whom the patient was discharged and complete any state required minor release reports.
10.3. Transfer.
10.3.1. The center shall have in effect a transfer agreement with one or more hospitals to reasonably assure timely admission of a patient to the hospital when transfer is medically appropriate as determined by a physician; and
10.3.2. The center shall have in effect a transfer agreement with one or more hospitals to reasonably assure medical and other information needed for the care and treatment of patients is exchanged between the institutions.
W. Va. Code R. § 71-16-11 Plan of Care
11.1. Preventive health examinations shall occur at two-to-four-week intervals up to 24 weeks.
11.2. Thorough medical supervision and testing shall be done by an appropriately licensed health care professional with a specialization in neonatal abstinence syndrome.
11.3. Standing medical orders for conditions other than neonatal abstinence syndrome shall be carefully evaluated and shall take into consideration cautions necessary for neonatal abstinence syndrome.
11.4. The center shall have policies and procedures to assess and treat patients who show signs of illness, which include but are not limited to diarrhea, vomiting, and fever.
11.5. Each patient shall have an initial comprehensive assessment within 24 hours of admission that will result in the development of the initial plan of care. The initial plan of care will include a comprehensive summary of findings. The initial plan of care and implementation of services must begin at the earliest opportunity immediately after the initial assessment.
11.6. Comprehensive Assessment. The assessment will result in the development of the summary of findings and the plan of care.
11.6.1. The comprehensive assessment shall include:
11.6.1.a. Physical and medical assessment;
11.6.1.b. Demographic information and custody status;
11.6.1.c. Presenting problems and reason for referral;
11.6.1.d. Medical history;
11.6.1.e. Social history;
11.6.1.f. Developmental history;
11.6.1.g. Exposure history;
11.6.1.h. Summary of family strengths and weaknesses;
11.6.1.i. Treatment and medication orders;
11.6.1.j. Nutritional and dietary needs;
11.6.1.k. Summary of presenting problems and focus for treatment;
11.6.1.l. Behavioral status and needs; and
11.6.1.m. Any other special needs or accommodations.
11.6.2. When appropriate to the needs of the patient, the assessment should include:
11.6.2.a. Review of adaptive behavior;
11.6.2.b. Review of need for special accommodation or adaptive technology; and
11.6.2.c. Special or unique behavioral issues.
11.6.3. Each assessment will consider any unique aspects of the patient's racial, ethnic and cultural backgrounds and the need for any special service approaches resulting from the assessment.
11.6.4. The results of the initial assessment will be included in a written summary included in the patient's chart. This summary must include:
11.6.4.a. Recommendations for health screenings or treatment;
11.6.4.b. A diagnosis;
11.6.4.c. Recommendations for further assessment;
11.6.4.d. Recommendations for clinical behavioral health treatment;
11.6.4.e. Recommendations for interventions to be made in the home environment;
11.6.4.f. Recommendations for placement and aftercare upon discharge; and
11.6.4.g. Recommendations for family visitation unless contraindicated clinically or legally.
11.6.5. Medical and Physical Assessments.
11.6.5.a. Medical and physical assessments must occur upon admission and ongoing assessments must occur at various times throughout the day, week and month.
11.6.5.b. Medical and physical assessments must include, at a minimum, the following:
11.6.5.b.1. A head-to-toe physical assessment must be completed upon admission;
11.6.5.b.2. Vital signs and temperature must be completed upon admission and daily once per shift;
11.6.5.b.3. Scoring of neonatal abstinence syndrome symptoms, while the infant is on medication and during the observation period, is to be completed upon admission and every three to four hours thereafter;
11.6.5.b.4. Skin integrity for mottling or breakdown;
11.6.5.b.5. Respiratory status;
11.6.5.b.6. Breathing sounds;
11.6.5.b.7. Cardiovascular system;
11.6.5.b.8. Brief neurological exam; and
11.6.5.b.9. Weight and length of infant, and circumference of head.
11.6.5.c. Twice Daily Assessment.
11.6.5.c.1. Each patient will undergo a comprehensive head-to-toe assessment by a registered professional nurse every 12 hours. A patient care assistant may assist the nurse and observe the assessment.
11.6.5.c.2. Coordination of at least one of the twice daily assessments should take place during visitation hours, when possible, to provide an opportunity for parental participation.
11.7. Comprehensive Summary of Findings. The comprehensive summary of findings shall be developed as a result of the comprehensive assessment, and shall include:
11.7.1. A diagnosis;
11.7.2. A prognosis;
11.7.3. Recommendations for health screenings, pharmacological interventions, and non-pharmacological interventions;
11.7.4. Recommendations for continued assessment;
11.7.5. Recommendations for behavioral health treatment;
11.7.6. Recommendations for interventions needed in the home environment;
11.7.7. Recommendations for placement and aftercare upon discharge;
11.7.8. Recommendations for family visitation unless contraindicated clinically or legally; and
11.7.9. Recommendations for rights restrictions.
11.8. Plan of Care.
11.8.1. The Plan of Care will be developed based on the Comprehensive Summary of Findings.
11.8.2. The Plan of Care shall include the type, frequency, responsible party and justification or rationale for the following:
11.8.2.a. Treatment to be provided for health screenings, pharmacological interventions, and non-pharmacological interventions;
11.8.2.b. Nutritional interventions;
11.8.2.c. Continued assessment needs and schedule;
11.8.2.d. Behavioral health treatment and interventions;
11.8.2.e. Interventions for in the home environment;
11.8.2.f. Interventions for any other underlying medical problems;
11.8.2.g. Description of all services to be provided;
11.8.2.h. Family visitation schedule unless contraindicated clinically or legally; and
11.8.2.i. Consent and approval of the parent or legal representative, as appropriate.
11.8.3. The Plan of Care shall be developed by a team consisting of, at a minimum, the Medical Director, Director of Nursing, the patient's nurse, and the parents or legal representative of the patient.
11.8.4. A weekly review and update to the Plan of Care shall be conducted for the initial 30 days. All data from the weekly reviews shall be compiled to develop the Comprehensive Care Plan.
11.8.5. Development of the Plan of Care. The Plan of Care shall include, at a minimum, the following:
11.8.5.a. Plan to strengthen the relationship between patient and family, if clinically and legally appropriate;
11.8.5.b. Identify the goals of each service to be provided;
11.8.5.c. Identify the services to be provided to achieve all identified goals;
11.8.5.d. Identify pharmacological and non-pharmacological treatments and interventions prescribed by the physician;
11.8.5.e. Identify therapeutic and other behavioral health interventions to be provided;
11.8.5.f. Identify dietary and other health services to be provided;
11.8.5.g. Identify services provided by outside providers or entities;
11.8.5.h. Discharge and permanency plan;
11.8.5.i. Identify the person(s) responsible for all services and interventions provided; and
11.8.5.j. Identify the frequency for all services and interventions provided.
11.8.6. Review of the Plan of Care. The Plan of Care will be reviewed and updated on a weekly basis and at all critical junctures. The review shall be conducted by Medical Director, Director of Nursing, patient's family and/or legal representative. The review shall include, at a minimum, the following:
11.8.6.a. Review of each goal and its current status;
11.8.6.b. Identification of problems preventing progress and strategies to address these problems;
11.8.6.c. Modifications to the made to the plan;
11.8.6.d. Summary of interventions provided to date; and
11.8.6.e. Review of discharge plan.
W. Va. Code R. § 71-16-12 Pharmacological Interventions
12.1. Pharmacological interventions used shall be those recognized as appropriate to treat neonatal abstinence syndrome in an inpatient community-based setting.
12.2. Medication, including over-the-counter medicine, will be prescribed and monitored by a licensed physician, physician's assistant or advanced practice registered professional nurse.
12.3. Patients admitted to the facility with properly labeled and bottled medications may continue those medications with appropriate consent until the center obtains a current physician's order. At no time shall this period exceed 24 hours.
12.4. Only the person with prescriptive authority may order medications and dosages; only the program physician may approve changes in dosage.
12.5. The parent and/or legal representative shall be advised of any change in medication dosage or administration.
12.6. Each neonatal abstinence syndrome center shall have policies and procedures to comply with all relevant federal and state laws, rules and regulations regarding the storage, management and administration of medications kept at the facility. The policies and procedures shall include measures to:
12.6.1. Ensure responsible handling and secure storage of all medications kept at the facility;
12.6.2. Ensure responsible documentation of all medications received, stored, administered and dispensed at the facility;
12.6.3. Ensure only authorized personnel may access the storage areas where any medications are kept;
12.6.4. Ensure the security of medications to prevent diversion;
12.6.5. Ensure the proper recording keeping of all medications, including but not limited to, the:
12.6.5.a. Receipt of medication records;
12.6.5.b. Initial inventory;
12.6.5.c. Monthly inventory;
12.6.5.d. Counting of all controlled substances;
12.6.5.e. Perpetual logs;
12.6.5.f. Administration;
12.6.5.g. Documenting wastage;
12.6.5.h. Documentation of patient charts;
12.6.5.i. Disposal of controlled substances; and
12.6.5.j. Transferring of controlled substances among registrants.
12.6.6. Ensure all personnel administering medications to adhere to federal and state laws, rules, regulations, and protocols or guidelines from approved authorities;
12.6.7. Ensure medications are administered only by a practitioner who is qualified to do so by his or her scope of practice, is licensed under the appropriate state law, and is registered under the appropriate state and federal laws to administer opioid drugs; and
12.6.8. Ensure all medication is administered in accordance with its approved product labeling.
12.7. Medication Errors.
12.7.1. In the event of a medication error, a registered professional nurse shall:
12.7.1.a. Complete a physical assessment of the patient's condition;
12.7.1.b. Provide any and all first aid, and contact emergency medical services;
12.7.1.c. Place patient on cardio-respiratory monitor, if opiate error;
12.7.1.d. Notify the attending physician immediately;
12.7.1.e. Document and read back physician orders; and
12.7.1.f. Once patients are stable, notify the Administrator, Director of Nursing, child protective services, and the Office of Health Facility Licensure and Certification.
12.7.2. Medication errors are considered a critical incident and must be reported to the Office of Health Facility Licensure and Certification.
12.8. Medication Storage and Handling.
12.8.1. Each and every time-controlled substances change hands or are used, documentation must be generated and maintained at the center.
12.8.2. Controlled substance records shall be maintained according to W. Va. Code §§60A-1-101, et seq.
12.8.3. Controlled substance records must be maintained at the center and must be readily retrievable and open to inspection and copying by the appropriate federal and state authorities.
12.8.4. The neonatal abstinence center shall conduct and submit a regular narcotics inventory and log review to the governing board on a quarterly basis.
12.8.5. On a regular monthly basis, and no longer than a 30-day interval, a narcotics log review shall be conducted by the Director of Nursing and one other professional staff member selected by the facility or the Governing Body.
12.8.6. The center shall provide training for all employees handling controlled substances in the proper procedures for storage and handling. This training shall be in accordance with the provisions of this rule.
12.8.7. All centers are required to have adequate controls in place to detect and prevent diversion of controlled substances.
12.8.8. All centers must follow proper storage requirements for ensuring security of medications, according to W. Va. Code §§60A-1-101, et seq., including but not limited to:
12.8.8.a. All controlled substances in a building must be stored in a permanently affixed, securely double locked and substantially built safe or cabinet;
12.8.8.b. The process or system for security of controlled substances must be commensurate with the quantity and types of controlled substances stocked; and
12.8.8.c. Controlled substances must not be left out or unattended at any time.
12.9. Handling Diversion, Loss and Theft.
12.9.1. A loss or theft must be immediately reported to the Drug Enforcement Administration, Board of Pharmacy, the West Virginia State Police, and the Office of Health Facility Licensure and Certification.
12.9.2. All reports of loss or theft must be completed on the required forms or methods as indicated by state and federal law, regulation or protocol.
12.9.3. All centers shall have a diversion control plan to address the prevention, intervention, investigation and quality control measures for the safeguarding of medications.
12.10. Administration of Narcotic Medications. When administering narcotic medication:
12.10.1. Two licensed nurses, one of which shall be a registered professional nurse, shall count the number of vials belonging to the patient;
12.10.2. The registered nurses shall remove the prescribed amount of the medication and record the remaining number of vials;
12.10.3. The unused (excess) amount shall be wasted and disposed of in accordance with state and federal law and within the provisions of this rule; and
12.10.4. Both licensed nurses shall sign the individual narcotic record book.
12.11. Medication Disposal.
12.11.1. Any medication that is unused, outdated, discontinued, expired or contaminated as wastage must be disposed of or destroyed according to local, state and federal laws and regulations.
12.11.2. When controlled substances are disposed of or destroyed, the following documentation must occur:
12.11.2.a. Log must have the center's name and address indicated;
12.11.2.b. Date of disposal or destruction;
12.11.2.c. Time of disposal or destruction;
12.11.2.d. Patient's name;
12.11.2.e. Drug name, drug dosage, and quantity disposed of or destroyed;
12.11.2.f. Reason for disposal or destruction;
12.11.2.g. Signature of the person, who shall be a licensed professional, preparing the report and performing the disposal or destruction; and
12.11.2.h. Signature of the witness, who shall be a licensed professional, as to the report and disposal or destruction.
12.11.3. Controlled substances must be disposed of or destroyed beyond reclamation.
12.11.4. All other medications shall be disposed of according to federal and state laws, regulations and protocols.
W. Va. Code R. § 71-16-13 Non-Pharmacological Interventions
13.1. The center shall provide patients a low stimulus environment to go through the withdrawal process in a safe manner without additional discomfort.
13.2. The center shall use therapeutic handling techniques, as tolerated, upon admission. Therapeutic handling consists of the following techniques:
13.2.1. Swaddling;
13.2.2. C-Position;
13.2.3. Head-to-Toe Movement;
13.2.4. Vertical Rocking;
13.2.5. Clapping; 13.2.6 Feeding;
13.2.7. Controlling the Environment; and
13.2.8. Introducing Stimuli.
13.3. The center shall ensure all caregivers will use soft voices and slow movements when handling patients.
13.4. The center shall provide an environment with low lighting, as needed by the patient.
13.5. The center shall maintain a quiet environment at all times.
13.6. The center shall educate parents and/or legal representative on the first visit about the low stimulus environment.
13.7. The center shall provide a consistent routine for all patients.
13.8. The center shall increase the amount of stimuli, including visual, auditory and tactile, as tolerated by the patient and according to the plan of care.
13.9. Feeding.
13.9.1. Prepared bottles shall be capped and clearly labeled with the patient's name, contents and the date prepared;
13.9.2. Prepared bottles shall be refrigerated in a separate section of the refrigerator and accessible only to employees;
13.9.3. Formula shall be stored in containers specific to the purpose;
13.9.4. Formula that remains at a temperature greater than 41 degrees Fahrenheit for more than one hour shall be discarded;
13.9.5. Formula bottles shall be used within timeframes established by the manufacturer and listed on the package; and
13.9.6. A microwave oven is not permitted for the heating of formula bottles under any circumstances.
13.9.7. A center shall have a planned three-day emergency food and water supply, and this may be incorporated with the regular stock of supplies.
13.10. Bathing.
13.10.1. The facility shall have a policy outlining the center's procedure for bathing patients in their care.
13.10.2. The center shall have a policy outlining the center's procedure for cleaning and disinfecting patient bathtubs.
13.11. Transportation.
13.11.1. The center shall have a policy to ensure the safety of the patient during transportation.
13.11.2. Qualified employees shall ensure each patient is secured in an approved rear-facing car seat.
13.12. Physician and Physician Services.
13.12.1. A physician shall approve, in writing, a recommendation for a person to be admitted to a neonatal abstinence center. Each patient shall remain under the care of an attending physician.
13.12.2. Physician supervision. A center shall ensure the medical care of each patient is supervised by a physician.
13.12.3. Physician visits. The physician shall:
13.12.3.a. Review the patient's plan of care, including medications and treatments, and examine the patient personally at each visit required under the provision of this rule;
13.12.3.b. Write, sign and date progress notes at each visit; and
13.12.3.c. Sign and date all orders.
13.12.4. Frequency of physician visits. The patient shall be seen face-to-face by a physician:
13.12.4.a. Within 24 hours of admission; and
13.12.4.b. At least twice per week, or more frequently as indicated by the needs of the patient.
13.12.5. Except as provided under the provisions of this rule, all required physician visits shall be made by the physician personally.
13.12.6. Availability of physician for emergency care. A center shall provide or arrange for the provision of physician services 24 hours a day, in case of an emergency.
13.12.7. Physician delegation of tasks. Except as specified under the provisions of this rule, a physician may delegate tasks to a physician assistant, nurse practitioner, or clinical nurse specialist who:
13.12.7.a. Is licensed by the State;
13.12.7.b. Is acting within their scope of practice; and
13.12.7.c. Is under the supervision of the physician.
W. Va. Code R. § 71-16-14 Parent Education and Counseling
14.1. The center shall provide or arrange for engagement, assessment, therapeutic services, and link to community support and services as part of the discharge and transition planning. Primary focus will be parents, families, and legal representatives of patients.
14.2. The parent education and counseling essential duties and responsibilities include but are not limited to:
14.2.1. Meet, or document attempts to meet, with parents, families, and/or legal representatives while patient is in the hospital and prior to admission to the neonatal abstinence syndrome center for the purpose of engaging and initiating admission process;
14.2.2. Complete biopsychosocial assessment of parents, family, and/or the legal representative that includes the use of drugs and alcohol;
14.2.3. Provide access to individual and group therapy, individual and group supportive intervention, and psychoeducational services to parents, families, and/or legal representatives;
14.2.4. Assist parents in obtaining needed support by establishing linkage, including but not limited to, employment, housing, and social service benefits;
14.2.5. Develop and arrange services and support for the parents, family, and/or legal representative upon discharge, including but not limited to behavioral and physical health services and recovery support; and
14.2.6. Coordinate linkage with, and support by, peer support and recovery coaches.
W. Va. Code R. § 71-16-15 Medical Records and Retention
15.1. A medical record must be maintained for every individual evaluated or treated in the facility.
15.2. The center must employ adequate personnel to ensure prompt completion, filing and retrieval of records.
15.3. Medical records must be accurately written, promptly completed, properly filed and retained.
15.4. The center must use a system of author identification and record maintenance that ensures the integrity of the authentication and protects the security of all record entries.
15.5. Medical records must be retained in their original or legally reproduced form until the patient reaches 24 years of age.
15.6. The center must have a procedure for ensuring the confidentiality of patient records.
15.6.1. Information from or copies of records may be released only to authorized individuals and the facility must ensure that unauthorized individuals cannot gain access to or alter patient records.
15.6.2. Original medical records must be released by the facility only in accordance with federal or state laws, court orders or subpoenas.
15.7. All patient medical record entries must be legible, complete, dated, timed and authenticated in written or electronic form by the person responsible for providing or evaluating the service provided, consistent with policies and procedures of the center.
15.8. The clinical or medical record must contain, at a minimum, the following:
15.8.1. Biographical information;
15.8.2. Copies of the custody and/or guardianship records;
15.8.3. Court ordered restrictions for the patient;
15.8.4. Reason for the referral;
15.8.5. Admission intake forms;
15.8.6. Discharge plan;
15.8.7. Aftercare plan for ongoing and future service needs;
15.8.8. Psychological, medical, toxicological, diagnostic and psychosocial evaluations;
15.8.9. Assessment information;
15.8.10. Plan of care, including goals of service;
15.8.11. Reports from outside and contracted providers of service to the patient;
15.8.12. Copies of all signed, written consent forms;
15.8.13. Routine documentation of ongoing services;
15.8.14. Documentation of incidents;
15.8.15. Documentation of medication administration records;
15.8.16. Documentation of treatment administration records;
15.8.17. Copies of all written orders for medications or special treatment procedures; and
15.8.18. Closing summary of discharge.
15.9. Medical records shall be maintained, handled and stored in a confidential manner to comply with all state and federal laws.
15.10. Access to the medical record is limited to the:
15.10.1. Patient;
15.10.2. His or her parents, as legally appropriate;
15.10.3. Legal representative;
15.10.4. Attorney, as legally appropriate;
15.10.5. Employees, as needed to provide care; and
15.10.6. Others as permitted by state or federal law.
Series 17 Delegation of Medication Administration and Health Maintenance Tasks to Approved Medication Assistive Personnel
W. Va. Code R. § 71-17-1 General
1.1. Scope. This legislative rule prescribes specific standards and procedures to provide for training, competency testing, and the certification of approved medication assistive personnel (AMAP) for the limited administration of medications and performance of health maintenance tasks in specified health care facilities. This rule must be read in conjunction with W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq.
1.2. Authority. W. Va. Code §16B-10-11 and §16B-14-6.
1.3. Filing Date. April 8, 2026.
1.4. Effective Date. May 1, 2026.
1.5. Sunset Date. This rule will terminate and have no further force or effect on August 1, 2031.
1.6. Variances.
1.6.1. The Director, in consultation with the Inspector General, may grant a variance from any provision of this rule if it determines:
1.6.1.a. Strict compliance would impose a substantial hardship on the licensee;
1.6.1.b. The licensee will otherwise meet the goal of this rule; and
1.6.1.c. A variance will not result in less protection of the health, safety, and welfare of the residents.
1.6.2. A variance shall not be granted from a provision pertaining to residents’ rights.
1.6.3. A variance shall not be granted from a provision pertaining to a requirement in W. Va. Code §§16B-10-1, et seq., or §§16B-14-1, et seq.
1.6.4. A variance request must be submitted in writing to the authorizing agency.
1.7. Enforcement. This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of W. Va. Code §§16B-10-1, et seq, and §§16B-14-1, et seq., and the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-17-2 Definitions
2.1. Definitions incorporated by reference. -- Those terms defined in W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq., where applicable, are incorporated herein by reference.
2.2. Assisted living residence. Assisted living residences as defined in W. Va. Code §§16B-5-1, et seq.
2.3. Behavioral health group home. A community-based type of housing that is established for adults or children with similar needs, levels of independence, and ability which provides services and supervision for people with developmental disabilities, behavioral disorders, or substance addictions; is licensed by the Office of Health Facility Licensure and Certification; and is in compliance with the state fire commission for residential facilities.
2.4. Delegation decision model. Describes the process the authorized registered professional nurse must follow to determine whether or not to delegate a nursing task to an approved medication assistive personnel, in accordance with the applicable provisions of W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq., as published by the West Virginia Board of Examiners for Registered Professional Nurses at https://wvrnboard.wv.gov/Pages/default.aspx.
2.5. Facility. An intermediate care facility for individuals with intellectual disabilities, assisted living residences, nursing homes, behavioral health group home, or private residence in which health care services or health maintenance tasks, or both, are provided under the supervision of an authorized registered professional nurse.
2.6. Facility staff member. An individual employed by a facility, but does not include a health care professional acting within the scope of a professional license or certificate.
2.7. Family. Biological parents, adoptive parents, foster parents, or other immediate family members living within the same household.
2.8. Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/IID). An intermediate care facility for individuals with intellectual disabilities which is certified by the Centers for Medicare and Medicaid Services (CMS) of the United States Department of Health and Human Services to provide health or rehabilitation services to persons with intellectual disabilities or persons with related conditions who are receiving active treatment.
2.9. Immediate family. A mother, stepmother, father, stepfather, sister, stepsister, brother, stepbrother, spouse, child, grandparent, or grandchild.
2.10. Location of medication administration or performance of health maintenance tasks. A facility or location where the resident requires administration of medication or assistance in taking medications or the performance of health maintenance tasks.
2.11. Medication error. The observed or identified preparation or administration of medications or biologicals which is not in accordance with:
2.11.1. The prescriber’s order;
2.11.2. The manufacturer’s specifications regarding the preparation and administration of the medication or biological; or
2.11.3. The accepted professional standards and principles which apply to professional s providing services. Accepted professional standards and principles include the various practice regulations within West Virginia, and current commonly accepted health standards established by national organizations, boards, and councils.
2.12. Natural supports. Family, friends, neighbors, or anyone who provides assistance and support to a resident but is not reimbursed.
2.13. Nursing home. Nursing homes as defined in W. Va. Code §§16B-4-1, et seq.
2.14. Prefilled insulin or insulin pen. A self-contained cartridge that is not drawn up from a bottle, this includes a dial-up insulin pen.
2.15. Prescribing practitioner. An individual who has prescriptive authority as provided in Chapter 30 of West Virginia Code.
2.16. Resident. A resident of a facility who for purposes of this rule, is in a stable condition.
2.17. Single specific agency. A person or entity operating two or more facilities.
W. Va. Code R. § 71-17-3 AMAP Program Approval
3.1. Any facility may permit the use of AMAPs when supervised by an authorized registered professional nurse, in accordance with this rule and the applicable provisions of W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq.
3.2. Prior to initiating an AMAP program, the facility shall submit to the Director written notification of the intent to participate in this program, documentation of the credentials of the authorized registered professional nurse who will oversee the program, and the facility policies and procedures required by this rule and the applicable provisions of W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq.
3.3. Participation in the program shall only be permitted after review and approval of the authorized registered professional nurse’s credentials and the facility policies and procedures by the Director, and after the authorized registered professional nurse has completed the facility trainer and instructor orientation course developed by the authorizing agency.
3.4. Prospective AMAPs must successfully complete training and competency testing in accordance with the provisions of this rule and the applicable provisions of W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq.
3.5. AMAPs must participate in retraining in accordance with the provisions of this rule and the applicable provisions of W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq.
3.6. AMAPs who have successfully trained and tested in one facility must, prior to being approved to perform AMAP tasks, in another facility, be re-evaluated for competency by the authorized registered professional nurse.
3.7. The Director may contract with an entity to provide facility trainer or instructor orientation training for the authorized registered professional nurse. The facility utilizing services shall pay any fees for training and testing.
W. Va. Code R. § 71-17-4 AMAP Program Administration
4.1. Authorized Registered Professional Nurse.
4.1.1. Each participating facility must have at least one authorized registered professional nurse.
4.1.2. The authorized registered professional nurse, in accordance with the provisions of this rule and the applicable provisions of W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq., must:
4.1.2.a. Possess a current, active, and unencumbered license to practice as a registered professional nurse in West Virginia;
4.1.2.b. Have practiced as a registered professional nurse in a position or capacity requiring knowledge of medications for the immediate two years, disregarding short absences, including, but not limited to, vacation or illness;
4.1.2.c. Be familiar with the nursing care needs of the residents assigned to the AMAP;
4.1.2.d. Have successfully completed the authorized registered professional nurse training for the AMAP program; and
4.12.e. Have knowledge of all facility policies and procedures pertaining to the AMAP program.
4.1.3. Number of testing opportunities.
4.1.3.a. The prospective authorized registered professional nurse has three opportunities to pass the competency test.
4.1.3.b. If the prospective authorized registered professional nurse does not pass the first testing opportunity, he or she must wait seven calendar days prior to taking the second testing opportunity.
4.1.3.c. If the prospective authorized registered professional nurse does not pass the second testing opportunity, the facility must request a third and final testing opportunity from the authorizing agency.
4.1.3.d. If the prospective authorized registered professional nurse does not pass the third testing opportunity, he or she must wait six months to gain more training and experience prior to being able to start the competency testing process a second and final time.
4.2. Before delegating permitted tasks, the authorized registered professional nurse must decide whether the task is appropriate to delegate based on the criteria set forth by the delegation decision model as defined in section 2.4. of this rule.
4.3. The authorized registered professional nurse will determine whether the resident is in stable condition relative to the tasks proposed to be delegated to the AMAP.
4.4. Any facility with an approved AMAP program shall provide the authorizing agency a list of the AMAPs, upon request.
4.5. Any non-nursing home agency or facility with an approved AMAP program, shall purchase and maintain liability insurance for the coverage of the licensed and unlicensed personnel in the delivery of services, pursuant to W. Va. Code §§16B-14-1, et seq., and this rule.
4.6. Exclusions from this rule for administration of medications in facilities.
4.6.1. Nothing in this rule may be construed to prohibit any facility staff member from providing prudent emergency assistance to aid any person who is in acute physical distress or requires emergency assistance, in the absence of trained medical or health care professionals. Examples of emergency assistance of acute physical distress requiring emergency assistance include, but are not limited to, the administration of cardiopulmonary resuscitation, Heimlich maneuver, and administration of naloxone or epinephrine. Facilities without trained medical or health care professionals on site should have the following in place:
4.6.1.a. The facility must have a policy related to administering lifesaving medications including, but not limited to, naloxone and epinephrine.
4.6.1.b. The facility policy must include a provision for staff to immediately call 911 prior to or in the process of carrying out lifesaving measures.
4.6.1.c. Staff must receive training on the administration of lifesaving medication and treatment by a qualified instructor. A qualified instructor is a professional acting within their scope of practice who has expertise in the area of instruction.
4.6.2. Supervision of self-administration of medication by facility staff members who are not licensed health care professionals may be permitted in certain circumstances when the substantial purpose of the setting is other than the provision of health care.
4.6.3. Any parent or guardian may administer medication to, or perform health maintenance tasks, or both for his or her adult or minor child regardless of whether or not the parent or guardian receives compensation for caring for said child.
4.6.4. Any legal guardian may administer medication to, or perform health maintenance tasks, or both for an adult or minor child who he or she is the designated legal guardian.
4.7. Location where delegated tasks may be performed. For non-nursing homes, the location where authorized and permitted delegation of tasks are performed is not limited to the facility.
4.7.1. The facility must have a standard of practice in place to secure prescribed medications, including controlled substances, within the residential setting.
4.7.2. The facility must have a process in place for the AMAP to sign out the medication for administration when the resident is away from the residential setting.
4.7.3. Once medications are signed out, they must be secured by the AMAP for transportation until the time of administration. The act of signing out the medications is the beginning of the administration process.
4.7.4. The facility must provide appropriate methods for the AMAP to secure medications, including controlled substances and medications requiring specific temperatures.
4.7.5. Delegation of tasks must be performed in a manner that protects the resident’s personal privacy and dignity.
W. Va. Code R. § 71-17-5 Curriculum and Competency Evaluation
5.1. Curriculum.
5.1.1. The Office of Health Facility Licensure and Certification’s training curricula shall be based on a nationally recognized model for certified medication aides.
5.1.2. The authorized registered professional nurse must develop person-centered, resident-specific training for AMAPs to learn how to provide specific delegated tasks. This training must be face-to-face.
5.1.3. Any AMAP who successfully completed the training and competency evaluation prior to the passage of this rule is exempt from the new training requirements.
5.2. Competency evaluation.
5.2.1. Competency evaluation for the non-nursing home AMAP.
5.2.1.a. The Office of Health Facility Licensure and Certification will develop the competency evaluation in accordance with W. Va. Code §16B-10-1, et seq.
5.2.1.b. The administration of the competency test to the prospective approved medication assistive personnel shall be by the authorized registered professional nurse. The authorized registered professional nurse shall handle competency tests in accordance with the instructions of the authorizing agency.
5.2.1.c. Competency evaluation includes the prospective approved medication assistive personnel and his or her:
5.2.1.c.1. Satisfactory completion and demonstration of all tasks in the curriculum; and
5.2.1.c.2. Satisfactory completion of a competency test approved by the authorizing agency.
5.2.1.d. The prospective approved medication assistive personnel shall be allowed two opportunities to satisfactory complete a competency test, utilizing a different test for each opportunity. A third and final competency test may only be given if the prospective approved medication assistive personnel repeats the training program. The decision to repeat the training course will be at the discretion of the authorized registered professional nurse. If the prospective approved medication assistive personnel does not pass the third testing opportunity, he or she must wait six months to gain more training and experience prior to being able to start the competency testing proves a second and final time.
5.2.2. Competency evaluation for nursing home AMAPs.
5.2.2.a. The authorizing agency will develop the competency evaluation in accordance with W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq.
5.2.2.b. The authorizing agency will develop policy for the implementation of the competency evaluation component.
5.2.2.c. The authorizing agency will contract with an entity to provide the national Medication Aide Certification Examination to the prospective AMAP. The facility utilizing services shall pay any fees for competency evaluation testing.
5.3. Retraining program.
5.3.1. Retraining of the AMAP shall be conducted every two years by the authorized registered professional nurse.
5.3.2. Retraining of the AMAP must consist of a four-hour course developed by the authorized registered professional nurse using the curriculum provided by the Office of Health Facility Licensure and Certification.
W. Va. Code R. § 71-17-6 Eligibility Requirements for AMAP to be Trained
6.1. A facility may permit a facility staff member to be trained as an AMAP in a single specific agency only after compliance with the provisions of this rule and when the following criteria are met:
6.1.1. The facility staff member is deemed competent by the authorized registered professional nurse to perform specific and permitted delegated tasks;
6.1.2. The facility staff member received an eligibility fitness determination or variance from the West Virginia Clearance for Access: Registry and Employment Screening;
6.1.3. The facility staff member holds a high school diploma or the equivalent;
6.1.4. The facility staff member has not been the subject of a finding of abuse, neglect, or misappropriation of a long-term care resident on the West Virginia Nurse Aide Abuse and Neglect Registry;
6.1.5. For nursing homes, the facility staff member must have at least one-year experience as a nurse aide in a long-term care facility; and
6.1.6. The facility staff member is certified in cardiopulmonary resuscitation and first aid.
W. Va. Code R. § 71-17-7 Minimum Policy and Procedure Requirements for AMAP Programs
7.1. Policy Development and Approval Procedures.
7.1.1. The facility or single specific agency must develop policies and procedures for the implementation of the AMAP program, including, but not limited to, the minimum requirements within the provisions of this rule and the applicable provisions of W. Va. Code §§16B-10-1, et seq., and §§16B-14-1, et seq.
7.1.2. An authorized registered professional nurse shall participate in development and revision of AMAP program policies and procedures.
7.1.3. Facilities are not permitted to implement an AMAP program prior to the authorizing Director’s approval of the AMAP program’s policies and procedures.
7.1.4. Facilities or single specific agencies must submit proposed policies and procedures to the Director’s at least 60 days prior to the proposed implementation date of the AMAP program.
7.1.5. Facilities or single specific agencies with approved policies and procedures must review the policies and procedures at least once a year for any needed revisions or updates.
7.1.6. Facilities or single specific agencies with approved policies and procedures must submit any proposed changes to the Director 30 days prior to implementing proposed changes.
7.1.7. The Director may require alterations to the facility’s or single specific agencies policy when a determination is made that the delegated tasks are not being monitored or performed in a safe manner or under unsafe conditions.
7.1.8. Failure by the facility or single specific agencies to develop and implement an effective policy and procedure for the AMAP program, as required by this rule may result in penalties, including the suspension or denial of participation in the AMAP program.
7.2. Personnel Records. Requirements for documentation in the personnel record must include at least the following related to the AMAP program:
7.2.1. Applications for participating as an authorized registered professional nurse;
7.2.2. Training records for all AMAP training received by the AMAP and the authorized registered professional nurse;
7.2.3. Competency testing attempts and successful completion;
7.2.4. Monitoring and supervision reviews by the authorized registered professional nurse;
7.2.5. Retraining records for the AMAP and authorized registered professional nurse;
7.2.6. Any disciplinary action taken related to AMAP or authorized registered professional nurse performance in carrying out duties and responsibilities; and
7.2.7. For nursing homes, proof of one year of full-time experience as a nurse aide in a long-term care facility.
7.3. Resident medical records. Requirements for documentation in the resident medical record must include at least the following related to the AMAP program:
7.3.1. Each facility shall maintain a medication administration record (MAR) for each resident, to be maintained as a part of the permanent medical record. This record must be available for review by the authorized registered professional nurse, representatives of the Director, and other authorized persons. This record shall include:
7.3.1.a. The name of the resident to receive the medication;
7.3.1.b. Listing of each medication, to include at least the following:
7.3.1.b.1. The name of the medication;
7.3.1.b.2. The dosage to be administered;
7.3.1.b.3. The time and frequency for administration;
7.3.1.b.4. The diagnosis for which the medication was ordered;
7.3.1.b.5. The route of administration;
7.3.1.b.6. The date the medication was ordered; and
7.3.1.b.7. The date the medication is to cease, if indicated on the physician’s order;
7.3.1.c. Legible identification of the name and title of the individual who administered the medication;
7.3.1.d. Name and phone number of the physician;
7.3.1.e. A listing of allergies the resident may have;
7.3.1.f. Space for each day of the month to record the administration of medication;
7.3.1.g. Any special instructions for handling or administering the medication, including instructions for maintaining aseptic conditions and appropriate storage;
7.3.1.h. Written, signed, and dated orders by the physician or authorized health care professional shall be present in the medical record for each medication to be administered, including over-the-counter medications. Verbal orders may only be taken by a registered professional nurse or licensed practical nurse and must be countersigned by the physician or authorized health care professional within the designated timeframe not to exceed 14 days; and
7.3.1.i. Written, signed, and dated verification of physician or authorized health care professional collaboration in the decision to allow medication administration shall be present in the medical record of each resident.
7.3.2. Each facility must maintain a treatment administration record (TAR) for each resident, to be maintained as a part of the permanent medical record. This record must be available for review by the authorized registered professional nurse, representatives of the Office of Health Facility Licensure and Certification, and other authorized persons. The TAR must include:
7.3.2.a. The name of the resident to receive the health maintenance task or medication to be administered;
7.3.2.b. Listing of the specific health maintenance task or medication to be administered to include at least the following:
7.3.2.b.1. Instructions for performing the specific health maintenance task or medication to be administered;
7.3.2.b.2. The time or intervals at which the health maintenance task or medication to be administered is to be administered or performed;
7.3.2.b.3. The date the health maintenance task or medication to be administered is to begin; and
7.3.2.b.4. The date the health maintenance task or medication to be administered is to cease, if indicated on the physician’s order;
7.3.2.c. Any special instructions for performing health maintenance task or medication to be administered, including but not limited to, instructions for maintaining aseptic conditions and appropriate storage;
7.3.2.d. Legible identification of the name and title of the individual who performed the health maintenance task;
7.3.2.e. Name and phone number of the physician;
7.3.2.f. A listing of allergies the resident may have;
7.3.2.g. Space for each day of the month to record the performance of the health maintenance task or medication to be administered;
7.3.2.h. Written, signed, and dated orders by the physician or authorized health care professional for each authorized health maintenance task to be performed or medication to be administered. Verbal orders may only be taken by a registered professional nurse or licensed practical nurse and must be countersigned by the physician or authorized health care professional within the designated timeframe not to exceed 14 days; and
7.3.2.i. Written, signed, and dated verification of physician or authorized health care professional collaboration in the decision to allow health maintenance tasks or medication to be administered by an AMAP must be present in the medical record of each resident.
7.4. Monitoring and Supervision. Requirements for the monitoring and supervision of the AMAP by the authorized registered professional nurse employed or contracted by the facility shall include at least the following:
7.4.1. The authorized registered professional nurse or designated registered professional nurse must be available onsite or on-call 24-hours per day, seven days per week, to respond to questions or concerns related to any aspect of the delegation process from the AMAP. In an emergency situation, a physician or physician extender may respond to questions or concerns related to any aspect of the delegation process from the AMAP;
7.4.2. The number of AMAPs, residents, and sites the authorized registered professional nurse will supervise, including their location;
7.4.3. The number of residents and sites for which the AMAP will perform delegated tasks;
7.4.4. The furthest distance the authorized registered professional nurse will be expected to travel to a site and between sites; and
7.4.5. Periodic and ongoing observation and supervision, not less frequently than every 90 days, of the AMAP performing delegated tasks to ensure quality of care is provided to the individual and to identify any areas for further training and technical assistance.
7.4.6. Video conferencing for completing observation and supervision may be used when an emergency situation, including inclement weather or other declared emergency limits the authorized registered professional nurse from being on-site. Video conferencing permitted in these limited situations when:
7.4.6.a. It offers the same access for observations and communication with the AMAP as face-to-face interaction;
7.4.6.b. It protects the privacy and confidentiality of the resident;
7.4.6.c. It is not used for consecutive monitoring events; and
7.4.6.d. Used to provide more frequent monitoring and supervision than the required quarterly events.
7.5. Multiple Site Coverage. The facility shall have policies and procedures for the training and approval process for AMAPs to perform authorized and permitted delegated tasks at different sites within a specific agency.
7.6. Review of Physician Orders. The facility shall have policies and procedures for ongoing review of the prescribing practitioner’s orders, MARs, TARs, and medication labels for consistency and documentation of such; and ongoing review of medication error reports and medication related incident reports by the authorized registered professional nurse and the prescribing practitioner.
7.7. Withdrawal of Approval. The facility shall have policies and procedure for the withdrawal of approval for an AMAP to perform authorized and permitted delegated tasks, including the reasons for the withdrawal of approval and the date of the withdrawal.
7.8. Communication. Requirements for communication and monitoring between the AMAP and the authorized registered professional nurse shall include at the following situations:
7.8.1. Any change in a resident’s condition;
7.8.2. Any discrepancy between the pharmacy label and the MAR;
7.8.3. Any discrepancy between the physician or health care provider’s order and the TAR;
7.8.4. Any deviation from the six rights of medication administration;
7.8.5. Any doubt or question about the performance of any delegated task;
7.8.6. Any resident refusal of the delegated task;
7.8.7. Any change in the prescribing practitioner’s order;
7.8.8. Any need for the disposal of medications; and
7.8.9. The type and frequency of additional monitoring and training in response of these occurrences will be determined by the authorized registered professional nurse.
7.9. Medication Delivery System. The authorized registered professional nurse must provide AMAPs with the possible risks, side effects, and contraindications for each medication prescribed to the resident. The medication delivery system policy used by the facility must include at least the following:
7.9.1. The type of medication packaging;
7.9.2. The method of medication storage;
7.9.3. How the six rights of medication administration are implemented;
7.9.4. The process for resident identification;
7.9.5. The process to prevent drug diversion;
7.9.6. The disposal method used;
7.9.7. The procedures used to handle, monitor, protect, store, and track controlled substances; and
7.9.8. The infection control prevention and mitigation program, including, but not limited to, universal precautions, use of personal protective equipment, and medical aseptic practice.
W. Va. Code R. § 71-17-8 Withdrawal of Authorization
8.1. The authorized registered professional nurse may withdraw the authorization for the AMAP if the authorized registered professional nurse determines that the AMAP is not performing in accordance with the training and written instructions.
8.2. The withdrawal of authorization, the reasons for the withdrawal, and any corresponding evidence shall be documented and relayed to the facility and the authorizing agency in order to remove the AMAP from the list of authorized individuals.
W. Va. Code R. § 71-17-9 Limitations on Medication Administration and Health Maintenance Tasks Approved Medication Assistive Personnel
9.1. The medication to be administered shall be received and maintained in the original container in which it was dispensed by a pharmacist or the physician until such time as it is administered to the resident.
9.2. No injections nor any parental medications shall be administered, except that prefilled insulin or insulin pens may be administered in non-nursing home facilities. Selecting or setting the amount on a dial-up insulin pen to an amount prescribed is ministerial in nature and is not deemed an exercise of clinical or judgment decision-making.
9.3. No irrigations nor debriding agents used in the treatment of a skin condition or minor abrasions shall be administered.
9.4. No verbal medication orders shall be accepted. No new medication or treatment orders shall be transcribed. First dosages of a new medication the individual has never taken shall not be administered in a nursing home setting. First dosages of a new medication the individual has never taken may be administered in a behavioral health center or assisted living residence setting. No medication dosages shall be converted or calculated.
9.5. Medications ordered by the prescribing practitioner to be given as needed shall be delegated only if the order is written with specific parameters which preclude independent judgment.
9.6. Delegation of tracheostomy care and ventilator care is not permitted in an intermediate care facility for individuals with an intellectual disability, nursing homes, assisted living, behavioral health group home, or private residence where the resident is not residing with family, natural supports, or both.
9.7. The delegation of health maintenance tasks is prohibited in nursing homes.
W. Va. Code R. § 71-17-10 Administrative Due Process
10.1. Those persons adversely affected by the enforcement of this rule may submit a written request for a desk review to determine whether the privileges were appropriately withdrawn in a manner prescribed by the policy developed by the Director.
Series 18 Nurse Aide Abuse and Neglect Registry
W. Va. Code R. § 71-18-1 General
1.1. Scope. -- This legislative rule establishes specific standards and procedures for maintenance of the Nurse Aide Abuse and Neglect Registry to protect certain rights of facility residents and nurse aides. This rule should be read in conjunction with W. Va. Code §§ 9-6-1, et seq.; §§16B-3-1, et seq.; §§16B-4-1, et seq.; and 42 CFR §§ 483.13(b), 483.156 and 488.301. The West Virginia Code is available in public libraries and on the Legislature's web page, http://www.wvlegislature.gov/. The Code of Federal Regulations is available at http://www.gpo.gov.
1.2. Authority. -- W. Va. Code §16B-3-8-1 and §16B-4-5.
1.3. Filing Date. -- May 28, 2025.
1.4. Effective Date. -- May, 28, 2025.
1.5. Sunset Date. -- This rule will terminate and have no further force or effect on August 1, 2030.
1.6. Applicability. This rule applies to nurse aides, staff, and residents of facilities and anyone who provides services to a resident of a facility on a regular or intermittent basis as defined in this rule and W. Va. Code §§16B-3-1, et seq., and §16B-4-1, et seq.
1.7. Enforcement. This rule is enforced by the Inspector General. The Inspector General designates the director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-18-2 Definitions
The following definitions are for the purpose of implementing this rule.
2.1. Abuse. The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. This presumes that instances of abuse of all residents, even those unaware that harm has occurred or those in a coma, cause physical harm, or pain or mental anguish. Abuse includes emotional abuse, physical abuse, sexual abuse, verbal abuse and involuntary seclusion.
2.2. Board of Review. Means the board of review organized in the Office of Inspector General pursuant to W. Va. Code §§5F-2-1a(c)(2).
2.3. Director. The Director of the Office of Health Facility Licensure and Certification within the Office of Inspector General.
2.4. Emotional Abuse. Subjecting or exposing a resident to behavior that may result in psychological trauma or injury. Emotional abuse includes humiliating, harassing, teasing or threatening; unreasonably restricting a resident's contact with family, friends or other residents; unreasonably ignoring a resident's requests; threats of punishment or deprivation; or willfully violating a resident's rights, including confidentiality. Emotional abuse may also be referred to as psychological abuse, mental abuse, or psychosocial abuse.
2.5. Facility. A nursing home as defined in W. Va. Code §§16B-4-1, et seq., or an extended care facility operated in connection with a hospital as defined in W. Va. Code §§16B-3-1, et seq.
2.6. Inspector General. The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1, or his or her designee.
2.7. Involuntary Seclusion. Separation of a resident against the resident's will, or the will of the resident's legal representative. Seclusion includes separation of the resident from other residents, separation of the resident from his or her room, or confinement of a resident to his or her room, with or without roommates.
2.8. Misappropriation of Property. The deliberate misplacement, exploitation or wrongful use of a resident's belongings or money.
2.9. Neglect. The failure to provide goods and services necessary to avoid physical harm, or the significant threat of physical harm, mental anguish or mental illness unless such actions are beyond the nurse aide's control. Failure to report an incident or failure to appear in response to a subpoena, or both shall be considered neglect.
2.10. Nurse Aide or Nursing Assistant. Any individual who is not a licensed health care provider or registered dietitian or volunteer who provides nursing or nursing related services for hire to residents in a facility after successfully completing a state-approved training and competency evaluation program. The terms nurse aide and nursing assistant are considered interchangeable and have the same meaning.
2.11. Nurse Aide Abuse and Neglect Registry. A list of names of nurse aides who have been found by the Nurse Aide Program to have abused, neglected, or misappropriated the property of residents of a facility, along with any additional information such as documentation of the state's investigation, the hearing date and the results, as well as any written comments by the nurse aide.
2.12. Nurse Aide Program. The program within the Office of Health Facility Licensure and Certification (OHFLAC) responsible for oversight of the nurse aide training and competency evaluation programs throughout the state and maintenance of the Nurse Aide registries including the Nurse Aide Abuse and Neglect Registry.
2.13. Office of Health Facility Licensure and Certification (OHFLAC). The West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
2.14. Physical Abuse. Abuse resulting from nurse aide-to-resident contact including but not limited to striking the resident with a part of the body or with an object; shoving, pushing, pulling, pinching, tugging or twisting any part of the resident's body with fingers or nails; burning or sticking the resident with an object; engaging in physical contact that is knowing, intentional, reckless or careless that causes or is likely to cause death, physical injury, pain or psychological harm to the resident; inappropriate or improper use of restraints or isolation; acts of retaliation; and even in response to a physical attack. Physical abuse also includes controlling behavior through corporal punishment.
2.15. Sexual Abuse. Sexual harassment, sexual coercion, sexual exploitation, or sexual assault, sexual contact, or graphic images of a resident's body, including but not limited to, private areas.
2.16. Test-eligible Nurse Aide. Any individual who is not a licensed health care provider or registered dietitian or volunteer, who provides nursing or nursing related services for hire to residents in a nursing home after successfully completing a state-approved nurse aide training program, but who has not yet successfully completed the state-approved competency test. An individual may not work as a nurse aide or nursing assistant on a full-time basis for more than four months, unless the individual has passed the state-approved competency test.
2.17. Verbal Abuse. The use of oral, written or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. Examples of verbal abuse include, but are not limited to, threats of harm; saying things to frighten a resident, such as telling a resident that he or she will never be able to see his or her family again; intimidation; humiliation; threats of hostility, or vulgarity.
W. Va. Code R. § 71-18-3 Responsibilities of the Nurse Aide
The nurse aide is responsible for all direct care duties assigned by the facility and for safeguarding residents' rights to a dignified existence, self-determination, and communication. Additional responsibilities that pertain to this rule include, but are not limited to:
3.1. Ensuring that residents are free from abuse, neglect, corporal punishment, involuntary seclusion and misappropriation of property.
3.2. Immediately report to facility administration all incidents of abuse, neglect, or misappropriation of property.
3.3. Maintaining current and accurate information with the Nurse Aide Program including name, address, phone number and all other information required by the Nurse Aide Program.
3.4. Maintaining current and accurate employment information with the Nurse Aide Program.
3.5. Reporting any changes in their criminal history to the Nurse Aide Program.
3.6. Maintaining a copy of this rule.
3.7. Appearing as a witness, if subpoenaed, at the Administrative Hearing regarding an incident of abuse, neglect or misappropriation. If the nurse aide fails to appear, the Nurse Aide Program may place the name of the nurse aide on the Nurse Aide Abuse and Neglect Registry for neglect.
W. Va. Code R. § 71-18-4 Reporting
4.1. Reporting Allegations of Suspected Abuse, Neglect or Misappropriation of Property to Facility Administration.
4.1.1. Any employee of a facility, or anyone who provides services to a resident of a facility on a regular or intermittent basis, who suspects that a resident in a facility has been abused or neglected or that the resident's property has been misappropriated shall immediately report the incident to the facility administration and Adult Protective Services as required by W. Va. Code §§9-6-1, et seq.
4.1.2. Failure of a nurse aide to report any incident of suspected abuse, neglect, or misappropriation of property will result in his or her placement on the Nurse Aide Abuse and Neglect Registry for neglect for one year.
4.1.3. A facility shall not discharge, discriminate or retaliate in any manner against any employee who in good faith reports suspected abuse, neglect or misappropriation of residents' property, or who testifies or will testify in good faith in any proceeding concerning abuse, neglect, or misappropriation of property of residents in the facility, except an employee may be suspended, discharged, or restricted in duties if the employee reported himself or herself.
4.2. Reporting Allegations of Suspected Abuse, Neglect, or Misappropriation of Property to the Nurse Aide Program.
4.2.1. When allegations of abuse, neglect, or misappropriation of property of a resident have been reported to the facility, the facility shall submit an immediate report form in a format provided by the Director and completed in its entirety within 24 hours.
4.2.2. The facility shall also report the allegations to Adult Protective Services in accordance with W. Va. Code §§9-6-1, et seq. and to a state or regional long-term care ombudsman operating under the authority of W. Va. §§16-5L-1, et seq.
4.2.3. Within five working days after the immediate report, the facility shall submit the five-day follow-up report in the format provided by OHFLAC and completed in its entirety to the Nurse Aide Program.
4.3. The reporting facility shall keep investigative information, including but not limited to, witness statements, physical evidence (including pictures of injuries), videotape evidence, and documentation of a similar nature until final resolution.
4.4. Reports involving rape or sexual assault require the following additional actions:
4.4.1. When rape or sexual assault of a resident is suspected, the designated staff person shall immediately accompany the resident to the nearest emergency room for examination.
4.4.2. If rape or sexual assault is suspected, facility staff shall assure that the matter is reported to local law enforcement.
W. Va. Code R. § 71-18-5 Investigations
5.1. The Nurse Aide Program shall review the facilities' immediate and follow-up reports of abuse, neglect or misappropriation of property and assign an Office of Health Facility Licensure and Certification surveyor to investigate when applicable.
5.2. The investigation process may include one or more of the following elements:
5.2.1. A visit to the facility;
5.2.2. A private interview✓ with the resident;
5.2.3. Observation of the resident within the facility environment;
5.2.4. Examination of the resident's medical and other records, and any other relevant documents, including incident reports;
5.2.5. Assessment of the resident's physical and mental functioning level;
5.2.6. Examination of any documents prepared by the facility that relates to the alleged incident or the facility's investigation of the incident;
5.2.7. Evaluation of the nature, extent, and cause or causes of the injury or harm suffered by the resident;
5.2.8. Interviews with any potential witnesses who may possess information related to the issues;
5.2.9. An interview with the alleged perpetrator; and
5.2.10. An evaluation of the environment and the risks of physical or emotional injury or harm.
5.3. After completion of the investigation, the Office of Health Facility Licensure and Certification surveyor shall complete a report and submit it to the Nurse Aide Program.
W. Va. Code R. § 71-18-6 Determination
The Nurse Aide Program shall review the investigation report and determine the disposition as follows:
6.1. The evidence is insufficient to warrant further action; or.
6.2. Make a finding of abuse, neglect, misappropriation of property, or a combination thereof and:
6.2.1. Place the nurse aide on the Nurse Aide Abuse and Neglect Registry; or
6.2.2. Offer an alternative sanction.
W. Va. Code R. § 71-18-7 Notice of Determination
7.1. If the Nurse Aide Program determines that there is insufficient evidence to substantiate the allegation, the Nurse Aide Program shall notify the nurse aide by regular mail.
7.2. If the Nurse Aide Program makes a finding of abuse, neglect, misappropriation of property, or a combination thereof, the Nurse Aide Program shall notify the nurse aide by certified mail of the determination. The determination notice shall include:
7.2.1. The nature of the offense;
7.2.2. The date of the occurrence;
7.2.3. The right to request a hearing and the procedure for a request;
7.2.4. The right to be represented by an attorney at his or her expense;
7.2.5. The intent to place the individual's name on the Nurse Aide Abuse and Neglect Registry in 30 days if the individual fails to request a hearing or fails to agree to alternative sanctions, if applicable;
7.2.6. The consequences if the Nurse Aide Program places the individual's name on the Nurse Aide Abuse and Neglect Registry; and
7.2.7. The Nurse Aide's right to petition the Nurse Aide Program in writing for removal of his or her name from the Nurse Aide Abuse and Neglect Registry after one year for placement due to neglect.
7.3. The nurse aide has 30 days from the date of receipt of the notice to request a hearing, or agree to alternative sanctions, if applicable.
7.4. If the Nurse Aide fails to request a hearing, or if applicable, agrees to alternative sanctions within 30 days:
7.4.1. The Nurse Aide Program shall place the individual's name on the Nurse Aide Abuse and Neglect Registry; and
7.4.2. The Nurse Aide Program shall notify the nurse aide of placement of his or her name on the Nurse Aide Abuse and Neglect Registry.
7.5. Upon notification that an individual's name has been included on the Nurse Aide Abuse and Neglect Registry of another state, the Nurse Aide Program shall place the individual's name on the West Virginia Nurse Aide Abuse and Neglect Registry and notify the individual according to the provisions of this section.
7.6. When the Nurse Aide Program places an individual's name on the Nurse Aide Abuse and Neglect Registry, it shall notify the Nurse Aide Abuse and Neglect Registries of other states listed on the individual's application as places of employment or residency, as well as the registries of states adjacent to West Virginia of the placement.
7.7. The Nurse Aide Program shall notify, in writing, the administrator at the individual's last known place of employment of the individual's placement on the Nurse Aide Abuse and Neglect Registry.
W. Va. Code R. § 71-18-8 Hearing
8.1. Hearings shall be held by the Board of Review in accordance with W. Va. Code §§29A-5-1, et seq., and except as provided in this section, with the Office of Inspector General Procedural Rule, Rules for Hearings under the Administrative Procedures Act, W. Va. Code R. §§69-1-1, et seq.
8.2. When the Board of Review receives a nurse aide's written request for a hearing, a hearing shall be scheduled within 120 days of the request.
8.3. The hearing shall be scheduled in proximity to the location where the alleged incident occurred, in Office of Health Facility Licensure and Certification offices, or a location agreed to by the parties.
8.4. Written notice of the date, time, place of the hearing, and brief statement of the matter asserted shall be given as prescribed by W. Va. Code § 29A-7-2, or by electronic mail at least 10 days prior to the hearing.
8.5. The nurse aide shall bear the cost of his or her attorney and a copy of the transcript, if requested.
8.6. Due to the confidential nature of these proceedings, the hearing is not open to the public. The Hearing Examiner shall have the authority to determine who may attend the hearing.
8.7. During the hearing, each party may:
8.7.1. Present evidence;
8.7.2. Cross-examine witnesses;
8.7.3. Submit rebuttal evidence; and
8.7.4. Have representation.
8.8. The Office of Health Facility Licensure and Certification bears the burden of proof by a preponderance of the evidence.
8.9. The Board of Review shall issue a written decision with supporting findings of fact and conclusions of law.
8.10. The Hearing Examiner may dismiss the request for a hearing if the nurse aide fails to appear at the scheduled hearing without good cause. The Hearing Examiner shall reschedule the hearing if the nurse aide establishes in writing good cause for failing to appear within 10 days of receipt of the notice of the failure to appear.
8.11. A nurse aide who fails to appear as a witness at an administrative hearing, after receiving a subpoena to appear, may be placed on the Nurse Aide Abuse and Neglect registry for neglect.
8.12. The Board of Review shall send copies of the final order to the following:
8.12.1. The parties;
8.12.2. The current administrator of the facility in which the incident occurred; and
8.12.3. The administrator of the facility in which the nurse aide is currently working, if applicable.
8.13. If the Board of Review affirms placement on the Nurse Aide Abuse and Neglect Registry, the Nurse Aide Program shall place the nurse aide's name on the Nurse Aide Abuse and Neglect Registry within 30 days. The nurse aide's name shall remain on the Nurse Aide Abuse and Neglect Registry until a court of law reverses the decision, or the nurse aide petitions for removal of his or her name from the Nurse Aide Abuse and Neglect Registry at the expiration of his or her placement period.
8.14. The nurse aide has the right to file an appeal of the decision by the Board of Review, within 30 days to the West Virginia Intermediate Court of Appeals.
W. Va. Code R. § 71-18-9 Court Determination
A determination in any court of law of any abuse, neglect or misappropriation of property by a nurse aide in any case involving a minor or an incapacitated adult shall result in placement of the nurse aide's name on the Nurse Aide Abuse and Neglect Registry.
W. Va. Code R. § 71-18-10 Facility Notice and Record Keeping
Facilities shall provide a copy of this rule to each nurse aide on their staff and to each nurse aide at the time of hiring and keep signed proof that each nurse aide has received a copy of the rule.
W. Va. Code R. § 71-18-11 Nurse Aide Registry Placement
11.1. Placement on the Nurse Aide Registry for any type of abuse is permanent.
11.2. Placement on the Nurse Aide Registry for neglect is for one calendar year after which the nurse aide may send a written request to the Registry to have his or her name removed, unless:
11.2.1. The nurse aide has continued to work in long term care, assisted living, behavioral health or hospice after he or she has been notified of his or her placement on the Nurse Aide Abuse and Neglect Registry for neglect. The nurse aide shall have the time that he or she worked after his or her notification added to the placement time so that a total of one calendar year is served on the Nurse Aide Abuse and Neglect Registry.
11.2.2. The nurse aide becomes ineligible for other reasons.
Series 19 Alzheimer's/Dementia Special Care Units and Programs
W. Va. Code R. § 71-19-1 General
1.1. Scope. -- This legislative rule prescribes specific standards and procedures to provide for the health, safety, and protection of the rights and dignity of individuals served by Alzheimer’s/dementia special care units and programs. This rule shall be read in conjunction with W. Va. Code §§16B-11-1, et seq. The West Virginia Code is available in public libraries and on the Legislature’s web page, http://www.wvlegislature.gov/.
1.2. Authority. -- W. Va. Code §§16B-11-5(a).
1.3. Filing Date. -- May 28, 2025.
1.4. Effective Date. -- May 28, 2025.
1.5. Sunset Date. -- This rule will terminate and have no further force or effect on August 1, 2030.
1.6. Applicability. -- This rule applies to facilities which advertise, market or otherwise promote the facility as providing special care units or programs for persons who have Alzheimer’s disease or a related dementia.
1.7. Enforcement. -- This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of W. Va. Code §§16B-11-1, et seq., and the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-19-2 Definitions
2.1. Activities of daily living -- The activities that individuals generally perform regularly in the course of maintaining their physical selves, such as eating, dressing, oral hygiene, toileting, personal grooming, and moving themselves from one location to another, as for example, in moving from a bed to a chair, or from one room to another.
2.2. Advertise. -- To make publicly and generally known, usually by printed notice or broadcast.
2.3. Alzheimer’s/Dementia Special Care Units and Programs
2.3.1. Alzheimer’s/Dementia Special Care Programs. -- Any licensed facility, as defined in this rule, that provides specialized services, for a specified number of hours, for residents with a diagnosis of Alzheimer’s disease or a related dementia; and that advertises, markets, or otherwise promotes the facility as providing specialized Alzheimer’s/dementia care services.
2.3.2. Alzheimer’s/Dementia Special Care Units. -- Any licensed facility, as defined in this rule, that provides specialized services, twenty-four (24) hours per day, in a specialized unit in the facility, for residents with a diagnosis of Alzheimer’s disease or related dementia; and that advertises, markets, or otherwise promotes the facility as providing a specialized unit for residents requiring Alzheimer’s/dementia care services.
2.4. Alzheimer’s disease. -- A progressive, neurodegenerative disease characterized by a loss of function and death of nerve cells in several areas of the brain, leading to loss of mental functions such as memory and learning. This disease is considered to be the most common form of dementia.
2.5. Dementia. -- A deterioration of intellectual function and other cognitive skills, leading to a decline in the ability to perform activities of daily living.
2.6. Director. – The Director of the Office of Health Facility Licensure and Certification within the Office of Inspector General.
2.7. Disclosure. -- The disclosure required by W. Va. Code §16B-11-4, which is a written document prepared by the facility and provided to individuals and their families, prior to admission of the resident, to disclose the form of care or treatment provided that distinguishes it as being especially applicable to, or suitable for, individuals.
2.8. Inspector General. – The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1 of this code, or his or her designee.
2.9. Legal Representative . –
2.9.1. A conservator, temporary conservator or limited conservator appointed pursuant to the West Virginia guardianship and conservatorship act, W. Va. Code §§44A-1-1, et seq., within the limits set by the order;
2.9.2. A guardian, temporary guardian or limited guardian appointed pursuant to the West Virginia guardianship and conservatorship act, W. Va. Code §§44A-1-1, et seq., within the limits set by the order;
2.9.3. An individual appointed as committee or guardian prior to June 9, 1994, within the limits set by the appointing order and W. Va. Code §44A-1-2(d);
2.9.4. An individual having the medical power of attorney pursuant to the West Virginia Health Care Decisions Act, W. Va. Code §§16-30-1, et seq., within the limits set by the law and the appointment;
2.9.5. An individual named as representative payee under the United States social security act, title 42 U.S.C. §301, et seq., within the limits of the payee’s legal authority;
2.9.6. A health care surrogate appointed pursuant to the West Virginia Health Care Decisions Act, W. Va. Code §§16-30-1, et seq., within the limits set by the appointment;
2.9.7. An attorney in fact appointed with power of attorney under common law or pursuant to uniform durable power of attorney, W. Va. Code §§39B-1-101, et seq., within the limits set by the appointment; or
2.9.8. An individual lawfully appointed in a similar or like relationship of responsibility for a resident under the laws of this state, or another state or legal jurisdiction, within the limits of the applicable statute and appointing authority; and
2.9.9. Who has no financial ties to the health care facility.
2.10. Market. -- To expose for sale or promotion. This includes but is not limited to individual letters written to prospective users or purchasers of services, brochures and advertisements.
2.11. Office of Health Facility Licensure and Certification. The West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
2.12. Promote. -- To advocate the adoption or use of; to try to sell or popularize by publicity.
W. Va. Code R. § 71-19-3 State Administrative Procedures
3.1. General licensing provisions.
3.1.1. A facility that proposes to advertise, market, or otherwise promote the facility as providing a specialized unit or program for residents requiring Alzheimer’s/dementia care services in an Alzheimer’s/dementia special care unit or program shall first obtain an additional license from the Director, to operate the special care unit or program.
3.1.2. A facility shall be licensed or eligible for a license as a health care facility in accordance with West Virginia law, to operate an Alzheimer’s/dementia special care unit or program. The facility shall meet the requirements of this rule in addition to any other applicable federal or state law and rule.
3.1.3. The facility shall make an application to the Director, prior to operation and on an annual license renewal application, on a form provided by the Director. The applicant shall complete, sign and date the application.
3.1.4. The applicant shall submit a disclosure and application for approval, completed on forms provided by the Director.
3.1.5. The Director may, in consultation with the Inspector General, deny the application, if the facility is the subject of enforcement action by the Office of Health Facility Licensure and Certification or has a history of noncompliance.
3.1.6. Prior to occupancy, the applicant shall submit architectural plans for an Alzheimer’s/dementia special care unit, including any new additions or renovations, to the Director and state fire marshal for approval.
3.2. Inspections.
3.2.1. The Director, during the facility’s state licensure surveys, shall evaluate compliance with this rule and verify the accuracy of the facility’s disclosure statement.
3.2.2. The Director shall conduct complaint investigations regarding the Alzheimer’s/dementia special care unit or program in accordance with the applicable state licensing provisions for the facility.
3.3. Non-Compliance.
3.3.1. In the event an Alzheimer’s/dementia special care unit or program fails to comply with the standards of this rule, the Director shall cite noncompliance and enforce penalties in accordance with the applicable state licensing provisions of the facility and this rule.
3.3.2. Any facility that fails to maintain substantial compliance with this rule is prohibited from advertising, marketing or promoting the facility as providing specialized Alzheimer’s or dementia care services.
W. Va. Code R. § 71-19-4 Human Resources
4.1. Qualifications, Orientation and Training.
4.1.1. A designated staff member shall be responsible for the coordination of the Alzheimer’s/dementia special care unit or program. The coordinator shall:
4.1.1.a. Coordinate as needed outside psychiatric and psychosocial services to assist with behavior modification plans;
4.1.1.b. Advocate for resident rights;
4.1.1.c. Ensure individualized interventions are provided to allow residents to express feelings resulting from the disease process, lost roles and life status;
4.1.1.d. Obtain and utilize a listing of community resources available to residents and family members, including Alzheimer’s networks; and
4.1.1.e. Offer monthly educational and family support group meetings.
4.1.2. The coordinator shall meet the minimum qualifications which include:
4.1.2.a. A license or degree as a health related professional;
4.1.2.b. A minimum of one year working directly with dementia or Alzheimer’s care patients; and
4.1.2.c. Completion of at least a 30-hour training course by a nationally recognized Alzheimer’s/dementia care giving resource or association or have comparable training and experience.
4.1.3. All assigned staff members shall complete a minimum of 30 hours of training on the care of residents with Alzheimer’s disease and related dementia. Staff shall have a minimum of 15 hours of documented training prior to supervised direct hands-on resident care. An additional 15 hours of training shall be completed prior to unsupervised direct care. Supervision shall be provided by a staff person who has completed the entire training. Training shall include at a minimum:
4.1.3.a. The facility’s philosophy and resident care policies;
4.1.3.b. The nature, stages, and treatment of Alzheimer’s disease and related dementia;
4.1.3.c. Positive therapeutic interventions and activities;
4.1.3.d. Communication techniques;
4.1.3.e. Behavior management;
4.1.3.f. Medication management;
4.1.3.g. Therapeutic environmental modifications;
4.1.3.h. Individualized comprehensive assessments and care plans;
4.1.3.i. The role of the family and their need for support;
4.1.3.j. Staff burnout prevention; and
4.1.3.k. Abuse prevention.
4.1.4. The facility shall provide a minimum of eight hours of documented annual training to all staff on the topics in subsection 4.1.3. of this rule.
4.1.5. The facility shall maintain and utilize an orientation manual and policies and procedures specific to the Alzheimer’s/dementia special care unit or program.
4.2. Staffing Requirements.
4.2.1. The Alzheimer’s/dementia special care unit or program shall provide sufficient numbers of direct care staff to provide care and services during all hours of operation to meet the physical, mental and psychosocial needs and to promote the highest practicable level of well-being of each resident.
4.2.2. The Alzheimer’s/dementia special care unit or program shall provide staffing at no less than an average of 2.25 hours of direct care personnel time per resident per day, or during the hours of operation, or as required by the facility’s state licensure rule if more demanding.
4.2.2.a. When the resident census is greater than five residents, a minimum of two direct care personnel shall be present.
4.2.2.b. “Available” or “on call” staff shall not be calculated into the minimum staffing hours required.
4.2.3. A licensed nurse shall be available on-site if any resident requires nursing procedures, including as needed (PRN) injections, or as required by the facility’s state licensure rule, if more restrictive.
4.2.4. Direct care staff shall not have housekeeping, laundry, food preparation or maintenance duties as their primary responsibilities. The unlicensed direct care staff included in the minimum staffing shall not be responsible for medication administration during the day or evening shift, including staff in a facility that participates in a program pursuant to W. Va. Code §§16B-10-1, et seq., or §§16B-14-1, et seq.
4.2.5. The Director may require staffing above the minimum requirement specified in this section if necessary to meet the residents’ needs.
W. Va. Code R. § 71-19-5 Admission, Transfer, and Discharge
5.1. Each facility shall have a written policy of pre-admission screening, admission, transfer and discharge procedures, including an explanation of the level of care the facility is licensed to provide and the conditions that may necessitate a resident’s transfer or discharge.
5.2. Admission criteria shall include a signed and dated physician’s diagnosis of Alzheimer’s disease or related dementia, a description of any behavioral, personality and physical symptoms, medical history, physical exam, and treatment plan.
5.3. The facility shall base admission decisions on the facility’s ability to meet the individual’s needs, state licensure limitations on the facility’s level of care, and the availability of licensed nursing staff to provide care.
5.4. Prior to admission, the facility shall provide a copy and an explanation of the disclosure statement to the resident and/or the resident’s legal representative. The facility shall maintain a copy of this disclosure, signed and dated by the resident and/or legal representative, in the resident’s record.
W. Va. Code R. § 71-19-6 Assessments and Plans of Care
6.1. Within three days of admission, the unit coordinator, with input from at least the resident and/or the resident’s legal representative, shall review the immediate care needs of the resident and establish a preliminary care plan.
6.2. Within seven days of admission, an interdisciplinary team including the unit coordinator, a social worker, the activities director, direct care staff and a registered nurse and other professional disciplines as appropriate, shall complete an initial assessment of a new resident which includes at a minimum: a social history; family supports; level of activities of daily living functioning; cognitive level; behavioral impairment; and nutritional status, including weight and nutritional requirements.
6.3. Within 21 days of admission the interdisciplinary team and the resident and/or the resident’s legal representative, shall develop a written individualized care plan, signed by each member of the Alzheimer’s/dementia special care unit or program staff, the resident and/or the resident’s legal representative which shall:
6.3.1. Reflect the resident as a person, with family history and interests;
6.3.2. Accurately describe specific needs, choices, problems and any inappropriate behaviors;
6.3.3. Describe specific desired outcomes and specific interventions to be used to achieve the desired outcomes;
6.3.4. Support the individual toward as much independence as possible;
6.3.5. Include opportunities for resident choice and self-management; and
6.3.6. Contain the job titles of staff who are to be primarily responsible for implementing the care plan.
6.4. The facility shall make a copy of the care plan available to all staff to ensure consistent implementation.
6.5. The facility shall provide resident care in accordance with the care plan.
6.6. The interdisciplinary team shall review, evaluate effectiveness and revise the residents’ assessment and care plan at least quarterly or more frequently as indicated by the changing needs of the residents.
W. Va. Code R. § 71-19-7 Behavior Management
7.1. The Alzheimer’s/dementia special care unit or program shall conduct and document an ongoing evaluation of any resident with behaviors, which are persistent and constitute sources of distress or dysfunction to the resident or present a danger to the resident or other individuals. The evaluation shall determine the following:
7.1.1. A baseline of the intensity, duration, and frequency of the behavior;
7.1.2. Antecedent behaviors and activities;
7.1.3. Recent changes or risk factors in the resident’s life;
7.1.4. Environment factors such as time of day, staff involved, noise, levels etc.;
7.1.5. The resident’s medical status;
7.1.6. Staffing patterns at times of inappropriate behavior;
7.1.7. Alternative, structured activities or behaviors that have been successful or unsuccessful in the past; and
7.1.8. The effectiveness of behavioral management approaches.
7.2. The facility shall implement a less restrictive, systematic, non-medication behavioral management approach to assist a resident prior to obtaining orders for psychotropic or behavioral modifying medications.
7.3. The facility shall ensure that any resident receiving a psychotropic or behavioral modifying medication shall:
7.3.1. Have that medication administered in a dose based on the age recommendations of the individual;
7.3.2. Have a diagnosed and documented condition justifying the use of the medication;
7.3.3. Receive daily monitoring for any side effects or adverse reaction to the medication;
7.3.4. Have adverse findings reported to the resident’s physician immediately; and
7.3.5. Have periodic dose reductions in the medication in an attempt to discontinue the medication unless the physician has determined that a dose reduction is contraindicated, based on the resident’s condition.
7.4. A registered professional nurse or other appropriate licensed health care professional shall evaluate all residents receiving psychotropic or behavioral modifying medications monthly to assess the resident’s functional level, identify potential adverse effects of the medication and consult with the resident’s physician to determine if the medication should be continued.
7.5. The resident’s physician shall document in the resident’s medical record every six months a reassessment and determination for the continued use of the medications and reasons a dose reduction would be contraindicated.
W. Va. Code R. § 71-19-8 Social Services
8.1. A licensed social worker or licensed professional counselor shall be responsible for providing the Alzheimer’s/dementia special care unit or program with the following services:
8.1.1. A comprehensive social assessment of each resident which includes the following:
8.1.1.a. The resident’s preferred name;
8.1.1.b. The resident’s past places of residence;
8.1.1.c. The resident’s family support system, with names and telephone numbers;
8.1.1.d. The resident’s past employment status, career history, and educational level;
8.1.1.e. The resident’s place of birth;
8.1.1.f. The resident’s childhood history (i.e. rural or city, religion, lifestyle, culture);
8.1.1.g. Languages spoken;
8.1.1.h. Names of the resident’s parents, children, siblings and legal representative;
8.1.1.i. Names of the resident’s pets; and
8.1.1.j. The resident’s adult daily routines (i.e. hour of rising and sleep, habits, etc.); and
8.1.2. Participation in resident interdisciplinary care planning.
W. Va. Code R. § 71-19-9 Activities
9.1. The Alzheimer’s/dementia special care unit and program shall provide activities appropriate to the needs of the individual residents. The residents’ routine should be developed and structured seven days per week and incorporate the possible need for therapeutic programming 24 hours per day in an Alzheimer’s/dementia special care unit and during the hours of operation of the Alzheimer’s/dementia special care program.
9.2. The activities program shall be directed by a person who is a therapeutic recreation specialist, occupational therapist, or activities professional who has:
9.2.1. Two years of experience in a social or recreational program in the past five years, one of which was full-time in a resident activities program in a health care setting;
9.2.2. Demonstrated the ability to provide for an ongoing program of activities designed to meet the resident’s needs;
9.2.3. Completed a training course approved by the state; and
9.2.4. Completed the training required in subsection 4.1.3. of this rule.
9.3. At least one employee per shift shall be responsible for activities programming with the assistance, participation and coordination of all direct care staff.
9.4. Activities programming shall:
9.4.1. Be provided for large and small groups, and on an individual basis;
9.4.2. Be geared toward long term memory rather than short term memory;
9.4.3. Provide multiple short activities to work with short attention spans;
9.4.4. Provide experiences with animals, nature, and children;
9.4.5. Provide opportunities for physical, social and emotional outlets;
9.4.6. Provide activities that create a feeling of usefulness; and
9.4.7. Be appropriate and meaningful for each resident, by respecting his or her cognitive level, beliefs, culture, values, and life experience.
9.5. Planned and spontaneous group and individual activities shall be provided in the following areas at least daily:
9.5.1. Gross motor activities (i.e. exercise, dancing, gardening, cooking, etc.);
9.5.2. Self-care activities (i.e. dressing, personal hygiene, grooming, etc.);
9.5.3. Social activities (i.e. spiritual, intellectual, games, music, etc.); and
9.5.4. Sensory and memory enhancement activities (i.e. auditory, scent, taste, and tactile stimulation, and reminiscing, etc.)
9.6. The Alzheimer’s/dementia special care unit or program shall offer the following activities at least weekly at a minimum and within specified time periods:
9.6.1. Crafts (i.e. decorations, pictures, painting, etc.); and
9.6.2. Outdoor activities, as the weather permits (i.e. walking outdoors, field trips, etc.)
9.7. The Alzheimer’s/dementia special care unit or program shall offer the following activities at least monthly:
9.7.1. Seasonal and holiday activities
W. Va. Code R. § 71-19-10 Physical Environment
10.1. The Alzheimer’s/dementia special care unit and Alzheimer’s/dementia special care program site shall be designed to accommodate residents with dementia in a non-institutional home-like environment. The design and environment shall assist residents in their activities of daily living; enhance their quality of life, reduce tension, agitation, and problem behaviors, and promote their safety.
10.2. In addition to the physical design standards required for the facility’s license, an Alzheimer’s/dementia special care unit and program site shall have the following:
10.2.1. A floor plan design with limited access to the designated area so that visitors and staff do not pass through the unit to get to other areas of the facility;
10.2.2. A multipurpose room for dining, group and individual activities and family visits which complies with the facility’s applicable licensing requirements for common space;
10.2.3. Security measures to provide for the safety of wandering residents that are as unobtrusive as possible;
10.2.4. High visual contrasts between floors and walls, and doorways and walls in resident use areas. Except for fire exits, door and access ways may be designed to minimize contrast to obscure or conceal areas the residents should not enter;
10.2.5. Non-reflective floors, walls and ceilings which minimize glare;
10.2.6. Evenly distributed lighting which minimizes glare and shadows and is designed to meet specific needs of the residents;
10.2.7. A monitoring or nurses’ station, which includes a communication system such as a telephone or two-way voice actuated call system to the main staff station of the facility, and space for charting and storage for resident records; and
10.2.8. Secured outdoor space and walkways which allow residents to ambulate but prevent undetected egress.
10.2.8.a. Outdoor areas shall have fencing or barriers that prevent elopement and do not have features that pose a threat to residents’ safety.
10.2.8.b. Walkways shall meet the accessibility requirements of the Americans with Disabilities Act (ADA) structural building codes.
10.3. The Alzheimer’s/dementia special care unit and Alzheimer’s/dementia special care program (as applicable) shall:
10.3.1. Provide freedom of movement for the residents to common areas, and to their personal spaces, and shall not lock residents out of or inside their rooms;
10.3.2. Provide plates and eating utensils which provide visual contrast between them and the table and that maximize the independence of the individual residents;
10.3.3. Provide comfortable chairs, in the common use area, including chairs that allow for gently rocking or gliding;
10.3.4. Encourage and assist residents to decorate and furnish their rooms in accordance with their personal preferences;
10.3.5. Individually identify resident’s rooms to assist residents in recognizing their room based on each resident’s cognitive level;
10.3.6. Keep corridors and common use areas free of objects which may cause falls;
10.3.7. Be free of toxic plants; and
10.3.8. Only use public address systems in the unit (if one exists) for emergencies
10.4. The Alzheimer’s/dementia special care unit or program shall develop policies and procedures to deal with residents who may wander so as to prevent egress and shall include actions to be taken in case a resident elopes.
10.5. If locking devices are used on exit doors, the locking devices shall be electronic and release when the following occurs:
10.5.1. The fire alarm or sprinkler system is activated;
10.5.2. Power to the facility fails; and
10.5.3. A key button or keypad located at the exits for routine use by staff for service is passed.
10.6. If keypads are used to lock and unlock exits:
10.6.1. Directions for their operations shall be posted on the outside of the door to allow individuals access to the unit; and
10.6.2. Staff shall be trained in the methods of releasing the locking device.
10.7. All locking devices and keypad locks shall meet all applicable fire safety requirements.
W. Va. Code R. § 71-19-11 Penalties
11.1. Civil Penalties.
11.1.1. For violations of this rule, the Director, in consultation with the Inspector General, shall administer the civil penalties in the West Virginia Code and rules applicable to the facility.
11.1.2. Upon completion of the report of inspection, the Director, in consultation with the Inspector General, shall determine what, if any, civil penalties are to be imposed pursuant to the West Virginia Code and this rule, and any rule applicable to the primary facility and issue citations. The Director, in consultation with the Inspector General, shall assess supplemental penalties for a facility’s failure to correct continuing violations: Provided, that where supplemental penalties have been assessed for continued failure to correct a violation of a non-life threatening nature, the Director, in consultation with the Inspector General, shall, prior to issuing a written citation, notify the licensee or non-licensed operator by registered or certified mail, return receipt requested, that civil penalties will be imposed on a date to be specified by the Director unless the corrective actions specified by the Director, in consultation with the Inspector General, are implemented in an acceptable manner.
11.1.3. The Director, in consultation with the Inspector General, shall issue all citations in writing and shall include at least the following:
11.1.3.a. The penalty;
11.1.3.b. A description of the nature of the violation, fully stating the specific statutory or rule provision and the manner in which the licensee or non-licensed operator violated that statutory provision or provision of the rule; and
11.1.3.c. The basis upon which the Director, in consultation with the Inspector General, assessed the penalty and selected the amount of civil money penalty, as well as the basis for the calculations.
11.1.4. The name of any resident jeopardized by the violation shall not be specified in the citation.
11.1.5. Each day a violation continues after the date by which correction was required by an approved plan of correction, or if an approved plan of correction was not submitted, the date on which the plan was due constitutes a separate violation.
11.1.6. In both determining to assess a civil penalty and in fixing the amount of civil penalty to be imposed for violations, the Director, in consultation with the Inspector General, shall consider the gravity of the violation, which shall include:
11.1.6.a. The degree of substantial probability that death or serious physical harm will result and, if applicable, did result from the violation;
11.1.6.b. The severity of serious physical harm most likely to result, and if applicable, that did result from the violation; and
11.1.6.c. The extent to which the provisions of the applicable statutes or rules were violated.
11.1.7. If a licensee or a non-licensed operator does not plan to contest a citation which imposes a penalty, he or she shall submit to the Director, within 10 business days after the issuance of the citation, the total sum of the penalty assessed.
11.1.8. If a licensee or a non-licensed operator desires to contest a citation which imposes a penalty or the date specified for correction of a violation, he or she shall, within 10 business days after service of the citation or specification of time in which violations are to be corrected, serve upon the Director, either personally or by registered or certified mail, the licensee’s or non-licensed operator’s written notice pursuant to Office of Inspector General’s Procedural Rule, Rules of Procedure for Contested Case Hearings and Declaratory Rulings, W. Va. Code §§64-1-1, et seq.
11.1.9. The assessments for penalties and for costs of legal action taken under the relevant West Virginia Code for the facility shall have monthly interest assessed at two percent on the last day of each month in which occurs the 30th day after receipt of notice of the assessment or after the month in which occurs the 30th day after receipt of the Board of Review’s final order following a hearing, whichever is later.
11.1.9.a. All assessments against a facility that are unpaid shall be added to the facility’s licensure fee and may be filed as a lien against the property of the licensee or operator of the facility.
11.1.10. The Inspector General shall, in a civil judicial proceeding, recover any unpaid assessment which : (a) has not been contested under the applicable statute or rule within 30 days of receipt of notice of the assessment; (b) has been affirmed under the applicable statute or rule and not appealed within 30 days of receipt of the Board of Review’s final order; or (c) has been affirmed on judicial review, as provided in the applicable statute or rule.
11.1.10.a. All money collected by assessments of civil penalties or interest shall be paid into a special resident benefit account and shall be applied by the Director only for the protection of the health or property of residents of facilities operated within the State of West Virginia, including: payment for costs of relocation of residents to other facilities; operation of a home pending correction of deficiencies or closure; and reimbursement of residents for personal funds lost.
11.2. Suspension or Revocation of the License.
11.2.1. The Director, in consultation with the Inspector General, may suspend or revoke the current license of the Alzheimer’s/dementia unit or program, if he or she finds evidence of one or more of the following:
11.2.1.a. The facility failed to provide to prospective patients or their legal representatives, in writing, the form of care or treatment specific to Alzheimer’s residents that contains the information set forth on W. Va. Code §16B-11-4(c);
11.2.1.b. The facility continued to advertise, market, or otherwise promote the facility as a specialized Alzheimer’s/dementia care unit or program after receiving notice that the unit or program does not meet department standards.
11.2.1.c. The facility failed to be in substantial compliance with the standards set forth in this rule or the rule applicable to the primary facility.
11.2.2. The Director, in consultation with the Inspector General, shall consider all available evidence at the time of the determination, including the history of the facility, unit or program and the applicant in complying with this rule, notices of violations which have been issued to the facility and the applicant, findings of surveys and inspections, and any evidence provided by the facility, unit or program, residents, law enforcement officials, and other interested individuals.
11.3. Ban on New Admissions. Reduction in Bed Capacity.
11.3.1. In addition to all other actions and penalties specified in this rule, the Director, in consultation with the Inspector General, may ban new admissions by order until further notice by the Director or reduce the bed capacity of a unit or both, when on the basis of inspection, he or she determines that:
11.3.1.a. There is an immediate and serious threat to one or more residents;
11.3.1.b. There are poor care outcomes resulting in an avoidable decline in a resident’s condition; or
11.3.1.c. There has been a decline in the functional abilities of one or more residents resulting from neglect or abuse; and
11.3.1.d. An admission ban or reduction in bed capacity or both would place the facility, unit or program in a position to render adequate care.
11.3.2. The Director shall notify a licensee of an admissions ban or reduction in bed capacity or both, stating the terms of the order, the reasons for the order and the date set for compliance with the order.
11.3.3. In addition to all other actions and penalties specified by law and this rule, the Director, in consultation with the Inspector General, may revoke a license which has been obtained through the use of fraud and subterfuge.
W. Va. Code R. § 71-19-12 Administrative Due Process
12.1. Administrative due process and remedies for actions taken under this rule, are set forth in the Office of Inspector General Procedural Rule, Rules of Procedure for Contested Case Hearings and Declaratory Rulings, W. Va. Code §§64-1-1, et seq., and W. Va. Code §§29A-4-1, et seq., and §§29A-5-1, et seq.
Series 20 Licensure of Medical Adult Day Care Centers
W. Va. Code R. § 71-20-1 General
1.1. Scope. -- This legislative rule establishes general standards and procedures for the licensure of medical adult day care centers as a special type of ambulatory health care center. The West Virginia Code is available in public libraries and on the Legislature’s web page, http://www.wvlegislature.gov/.
1.2. Authority. -- W. Va. Code §§16B-3-8.
1.3. Filing Date. -- May 28, 2025.
1.4. Effective Date. -- May 28, 2025.
1.5. Sunset Date. -- This rule will terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-20-2 Application and Enforcement
2.1. Application. This rule applies to any individual person, association, partnership, corporation, whether for profit or not, local governmental unit or any division, department, board or agency thereof which shall establish, maintain or operate a medical adult day care center. A day care program maintained and operated by a nursing home, hospital or other licensed health care facility shall comply with this rule. Compliance with the standards in this rule shall be evaluated independently from compliance with other licensure standards and sharing of staff, space, physical facilities and equipment or other may be permitted only if the requirements of each applicable rule are satisfied in full.
2.2. Exceptions.
2.2.1. This rule shall not apply to three-to-eight-hour service programs carried out by a behavioral health center licensed under Office of Inspector General Legislative Rule, Behavioral Health Centers Licensure, W. Va. Code R. §§71-25-1, et seq., unless the behavioral health center program routinely offers medical treatment services in addition to those behavioral health services within the scope of that rule.
2.2.2. This rule shall not apply to day care programs for adults which are primarily social and recreational in nature, but which may occasionally offer medical screening clinics.
2.3. Enforcement. This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of W. Va. Code §§16B-3-1, et seq., and the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-20-3 Definitions
3.1. Abuse. - The infliction or threat to inflict injury, unreasonable confinement, misuse of physical or chemical restraints, intimidation, or punishment with resulting physical harm, pain, or mental anguish, including the following:
3.1.1. Mental Abuse. - Includes, but is not limited to, humiliation, harassment, threats of punishment or deprivation;
3.1.2. Physical Abuse. - Includes, but is not limited to, hitting, slapping, pinching, kicking or, use of controlling behavior through corporal punishment;
3.1.3. Sexual Abuse. - Includes, but is not limited to, harassment, coercion, or assault of a sexual nature; and
3.1.4. Verbal Abuse. - Includes, but is not limited to, the use of oral, written or gestured language in communicating with a participant or used within the participant’s hearing regardless of the participant’s age, ability to comprehend or disability that contains disparaging and derogatory terms.
3.2. Activities of Daily Living. - The activities that an individual generally performs regularly in the course of maintaining his or her physical self, such as eating, dressing, oral hygiene, toileting, personal grooming, and moving himself or herself from one location to another.
3.3. Adult. - An individual eighteen years of age or older or who otherwise qualifies as an adult under West Virginia law.
3.4. Administration of Medication. - Assisting a person in the ingestion, application or inhalation of medications, including both prescription drugs and non-prescription drugs.
3.5. Ambulatory Health Care Facility. - Any facility which provides health care or mental health care to noninstitutionalized persons on an outpatient basis. This definition does not include the legally authorized practice of medicine by any one or more persons in the private office of any health care providers.
3.6. Center. - Medical adult day care center as defined in this rule.
3.7. Conservator. - A person appointed pursuant to the West Virginia Legal Guardianship and Conservatorship Act, W. Va. Code §44A-1-1 et seq., within the limits set by the order, responsible for managing the estate and financial affairs of another individual who has been determined by the court to be incompetent and therefore no longer able to handle those affairs independently.
3.8. Committee. - A person who is bonded and given the responsibility of proper use of an incompetent person’s money who was appointed prior to June 9, 1994, within the limits set by the appointing order and W. Va. Code §44A-1-2(d).
3.9. Communicable Disease. - An illness caused by an infectious agent or its toxic product that is transmitted, directly or indirectly, to a susceptible host from an infected person or animal or through the agency of an intermediate host or a vector or through the inanimate environment.
3.10. Developmental Disorder. - A group of disorders in which the predominant disturbance is in the acquisition of cognitive, language, motor, or social skills. The disturbance may involve a general delay, as in mental retardation, or a delay or failure to progress in a specific area of skill acquisition or multiple areas in which there are qualitative distortions of normal development.
3.11. Deficiency. - A violation of this rule.
3.12. Director. -- The Director of the Office of Health Facility Licensure and Certification within the Office of Inspector General.
3.13. Disability. - Any limitation of physical, mental, or social activity of an individual as compared with other individuals of similar age, sex, and occupation. It frequently refers to limitations of the usual or major activities, most commonly vocational.
3.14. Durable Power of Attorney. - A person appointed by another person to make decisions on his or her behalf pursuant to W. Va. Code §39-4-1, or power of attorney under common law, within the limits of the appointment.
3.15. Exploitation. - The act or process of taking unjust advantage of another individual for one’s own benefit that includes, but is not limited to, the deliberate misplacement or wrongful use of his or her belongings or money without the individual’s consent.
3.16. Extensive Nursing Care. - The nursing care required when there is a major deviation from normal in a body system or multiple body systems of such magnitude that the deviations are life-threatening, and the individual's condition is unstable and unpredictable.
3.17. Facility Director. - The owner or individual selected by the licensee to be responsible for the day-to-day operation of the medical adult day care program.
3.18. Functional Needs Assessment. - Any measurement tool that identifies for the participant and the licensee those services that the licensee will need to obtain or provide for the participant in order to promote the participant’s health, comfort, dignity and independence.
3.19. Governing Body. - The individual, agency, group or corporation appointed, elected or otherwise designated in which the ultimate responsibility and authority for the conduct of the center is vested.
3.20. Guardian. - A person appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code §§44A-1-1, et seq., within the limits set by the order, responsible for the personal affairs of another individual who has been determined by the court to be incompetent and therefore no longer able to handle these affairs independently.
3.21. Health Care Surrogate. - A person appointed by a health care professional pursuant to the West Virginia Health Care Decisions Act, W. Va. Code §§16-30-1, et seq., within the limits set by the appointment, to make health care decisions for another individual who has been determined to lack the capacity to independently make those decisions.
3.22. Immediate and Serious Threat. - A situation that presents a high probability of serious harm or injury to one or more program participants. An immediate or serious threat need not result in actual harm to any participant.
3.23. Inspector General. -- The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1, or his or her designee.
3.24. Legal Representative. - A person lawfully invested with the power and charged with the duty of taking care of another person or with managing the property or rights of another person, including a committee, conservator, guardian, health care surrogate, durable power of attorney, medical power of attorney, representative payee, trustee or other duly appointed person.
3.25. License. - The document issued by the Director of the Office of Health Facility Licensure or Certification, or his or her designee, which constitutes the authority to perform services included within the scope of this rule.
3.26. Licensed Capacity. - The number of participants in a medical adult day care program is licensed to serve at one time.
3.27. Licensed Health Care Professional. - A health care professional currently licensed in West Virginia including, but not limited to, a social worker, dentist, practical nurse, occupational therapist, pharmacist, physical therapist, physician, physician assistant, psychologist, registered professional nurse, or speech-language pathologist.
3.28. Major Incident. - An event or occurrence, the outcome of which places one or more participant’s health and well-being in imminent danger, such as:
3.28.1. A fall, an accident or another event that results in fracture or serious injury or threatens the life of the participant;
3.28.2. A participant’s death occurring from other than natural causes;
3.28.3. A missing participant who is likely to injure himself or herself or who needs medication or treatment on a regular basis, and who is likely to have difficulty returning to the medical adult day care program on his or her own;
3.28.4. Assault on a participant resulting in injury; or
3.28.5. Other suspected criminal activity or events that cause the disruption of normal medical adult day care program activity, including threats or occurrences of extreme violence, explosions, fire or natural disasters.
3.29. Medical Adult Day Care Center. - An ambulatory health care facility which provides an organized day program of therapeutic, social, and health maintenance and restorative services and whose general goal is to provide an alternative to 24-hour long term institutional care to elderly or disabled adults who are in need of such services by virtue of physical and mental impairment.
3.30. Medical Power of Attorney. - A document naming a person eighteen years of age or older to make health care decisions for another person pursuant to the West Virginia Health Care Decisions Act, W. Va. Code §§16-30-1, et seq., within the limits set by law and the appointment.
3.31. Mental Disorder. - An illness that affects the psychological well-being or behavior of an individual to the extent that the individual requires treatment for his or her own welfare or the welfare of others.
3.32. Multi-disciplinary Team. - A service planning team comprised of representation from at least the following: the center director, a registered nurse, the activity director, direct care staff, the participant and the participant’s family. Representation from other disciplines such as nutrition, physical therapy, occupational therapy and speech therapy may be included as applicable.
3.33. Neglect. - Failure to provide for the necessities of daily living or the lack of care.
3.34. Nursing Care. - Those procedures commonly employed in providing for the physical, emotional and rehabilitational needs of the ill or otherwise incapacitated which require technical skills and knowledge beyond that which the untrained person possesses, including, but not limited to, procedures such as: irrigations; catheterization; application of dressings; supervision of special diets; objective observation of changes in a participant’s condition as a means of analyzing and determining the nursing care required and the need for further medical diagnosis and treatment; special procedures contributing to rehabilitation; administration of medication by any route ordered by a physician, such as parenterally, rectally, or orally; and carrying out other treatments prescribed by a physician which involve a like level of complexity and skill in administration.
3.35. Office of Health Facility Licensure and Certification. -- The West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
3.36. Participant. - An individual who has been accepted for participation in the services and activities offered by a licensed medical adult day care program.
3.37. Personal Care Services. - Personal services designed to assist an individual to achieve an optimum level of functioning and self-care., including, but not limited to, the following: help with activities of daily living or supervision required because of the age or physical or mental impairment of the participant.
3.38. Representative Payee. - A person or organization that receives Social Security and/or Supplemental Security Income (SSI) payments for someone who cannot manage or direct the management of his or/her money appointed under the U.S. Social Security Act, Title 42 US Code §301, et seq., within the limits of the payee's legal authority.
3.39. Restraint. - Any physical or chemical means used for the purpose of limiting or restricting a person’s movement or mobility including:
3.39.1. Any manual method or physical or mechanical device, material or equipment that the participant cannot remove at will and that physically limits, restricts, or deprives the participant of movement or mobility including but not limited to lap belts, vests, gates, or locked doors; or
3.39.2. Any drug used to limit the movement or mental capacity of a participant beyond the requirements of therapeutic treatment.
3.40. Self-administration of Medications. - The act of a participant, who is independently capable of reading and understanding the labels of prescribed medication, in opening and accessing a prepackaged container of medication, accurately identifying and taking the correct dosage of the medication, at the correct time and under the correct circumstances as prescribed by a licensed health care professional with prescriptive authority.
3.41. Substantial compliance -- The Medical Adult Day Care Center has no violation of which, as the Director determines, would present an imminent danger to the health, safety or welfare of any resident or a probability that death or serious physical harm could result, and has no ongoing violation of a regulation where there is a direct or immediate relationship to the health, safety or welfare of the resident(s).
3.42. Supervision of self-administration of medication. - A personal service which includes reminding participants to take medications, opening medication containers for participants, reading the medication label to participants, observing participants while they take medications, checking the self-administered dosage against the label on the container and reassuring participants that they have obtained and are taking the dosage as prescribed.
3.43. Service Plan. - A written description of the services that need to be provided to a participant to meet all of the needs identified in his or her functional needs assessment.
3.44. Specialty services. - Specialized services offered to participants in addition to regular medical adult day care services including physical therapy, occupational therapy, speech therapy and services specifically targeted to special populations such as individuals with Alzheimer’s disease, developmental disabilities, traumatic brain injury, mental illness and HIV/AIDS.
3.45. Supervision. - The assumption of varying degrees of responsibility for the safety and well-being of participants including, but not limited to:
3.45.1. Being aware of the participant’s whereabouts, to the extent identified as a need by the participant’s assessment or service plan;
3.45.2. Monitoring the activities of a participant while on the premises of the medical adult day care program to ensure the participant’s health, safety and well-being; and,
3.45.3. Reminding the participant of any important activities of daily living.
3.46. Volunteer. - A person who offers his or her time to provide services to the center without pay.
3.47. Waiver. - An exemption from compliance with a requirement set forth in this rule.
W. Va. Code R. § 71-20-4 State Administrative Procedures
4.1. General Licensing Provisions.
4.1.1. Before establishing, maintaining, offering, operating or advertising a medical adult day care center a person shall obtain a license authorizing the operation from the Director.
4.1.2. Each new applicant must be at least 21 years of age and must provide at least two letters of reference from reputable citizens with whom he or she is personally acquainted and who certify his or her character and qualifications. If the applicant is an association, corporation or governmental unit, evidence shall be submitted to its members and the persons in charge.
4.1.3. A license is valid only for the person or organization and for the center named in the application and on the license and is not transferable. After a license is issued, if there is any change in the name of the licensee or the name of the medical adult day care center, the licensee shall notify the Director immediately and no later than within 15 days.
4.1.4. If the licensee owns more than one medical adult day care center, each center shall have a separate license.
4.1.5. The words ‘clinic,” ‘hospital,” “residence” or any other words that suggest a type of facility other than a medical adult day care center may not be used in the name or the advertising of the center.
4.1.6. The licensee is responsible for compliance with this rule, the terms of the medical adult day care center’s license, W. Va. Code §§16B-3-1, et seq., and other relevant federal, state, and local laws and agency policies and procedures.
4.1.7. The Director may issue an initial or a renewal license for a period not to exceed one year, unless if an applicant submits an application for renewal of a license currently in effect in accordance with this rule and W. Va. Code §§16B-3-1, et seq., together with the required fee. The license shall continue in effect until:
4.1.7.a. The thirtieth of June following the date of issuance unless continued pursuant to this rule and W. Va. Code §§16B-3-1, et seq.;
4.1.7.b. The date of a revocation or suspension of the license pursuant to this rule and W. Va. Code §§16B-3-1, et seq., or
4.1.7.c. The date of issuance of a new license, whichever date occurs first.
4.2. Initial Licensure Application.
4.2.1. An applicant for initial licensure shall submit a completed application to the office of health facility licensure and certification, along with a non-refundable fee of $100 and any additional information the Director may require.
4.2.2. The applicant shall have his or her notarized signature on the application. The signature shall serve as a release for obtaining references, credit and other background information.
4.2.3. The applicant shall provide to the Director a preliminary operating plan that includes a proposed budget with projected monthly income, a balance sheet showing all expenses and income on forms provided by the Director, including but not limited to, reimbursement of the owners, lease payment, and monthly fees charged. The Director shall determine the licensed capacity.
4.2.4. The applicant shall submit the application and fee at least 90 days prior to the date proposed for the commencement of operations.
4.2.5. After a satisfactory inspection to ensure compliance with this rule, the Director shall issue an initial license.
4.2.6. An initial license shall not be issued under this rule for a project reviewable under W. Va. Code §§16-2D-1, et seq., unless the state health planning and development agency has issued a finding, after a final conformance review, that the project conforms to the terms of the certificate of need decision issued for the project. Evidence of compliance shall be supplied with the licensure application.
4.3. License Renewal.
4.3.1. The licensee shall postmark, or hand deliver, applications for renewal of a license, along with a non-refundable fee of $100 dollars, to the Director at least 90 days before the expiration date of the current license.
4.3.2. For an increase in the licensed capacity, the licensee shall obtain prior written approval of the Director. In addition to the renewal application, the applicant shall submit a plan of operation to the Director for approval, and the Director shall determine the increased licensed capacity.
4.3.3. Except as specified in section 4.4. of this rule, the Director shall issue a renewal license to a medical adult day care center when the following conditions are met:
4.3.3.a. The center is found to be in substantial compliance with this rule; and
4.3.3.b. The applicant has submitted a completed application, applicable fee and all requested financial information.
4.4. Non-Issuance of Initial or Renewal License.
4.4.1. The Director may refuse to issue or may revoke either an initial or a renewal license if he or she finds evidence of the following:
4.4.1.a. The applicant or licensee has a lack of financial stability to operate, such as insufficient capital, delinquent accounts, checks returned because of insufficient funds, and nonpayment of taxes, utility expenses and other essential services;
4.4.1.b. The applicant or licensee has a personal history that has evidence of abuse, fraud, or substantial and repeated violations of applicable laws and rules in the operation of any health care facility or service organization or in the care of dependent persons;
4.4.1.c. The applicant or licensee has a personal history that has evidence of a conviction of crimes related to the provision of care to a dependent population as a result of a criminal investigative background check by the West Virginia state police, through the central abuse registry or is listed on any abuse registry established by the state;
4.4.1.d. The applicant or licensee has been denied a license or has had a license to operate a health care facility or medical adult day care center revoked in West Virginia or any other jurisdiction during the previous five years;
4.4.1.e. The applicant or licensee has a record of noncompliance with lawful orders of the department or other licensing or certification agency for any jurisdiction in which the applicant has operated, directed or participated in the operation of a health care facility or medical adult day care center;
4.4.1.f. The applicant, licensee or person in charge of the center has refused the Director entry and access to participants and records for an inspection or survey;
4.4.1.g. The applicant or licensee has converted the property of a participant for his or her own use, or has secured property, or a bequest of property, from a participant by undue influence;
4.4.1.h. The applicant, licensee or director has submitted false information to the Director during the licensure process or during the course of an inspection or survey of the center;
4.4.1.i. The applicant or licensee has moved the medial adult day care program to another location owned or operated by the applicant or licensee without prior approval of the location by the Director;
4.4.1.j. The applicant or licensee has built or renovated a center without complying with the requirements of this rule;
4.4.1.k. The applicant or licensee has failed to be in substantial compliance with the requirements of this rule;
4.4.1.l. The center has failed to receive a recommendation for licensure from the state fire marshal; or
4.4.1.m. For a project reviewable under W. Va. Code §§16-2D-1, et seq., the center has failed to receive a finding by the state health planning and development agency that the project conforms to the terms of the certificate of need decision issued for the project.
4.5. Inspections.
4.5.1. The Director shall inspect a medical adult day care center as necessary to carry out the intent of W. Va. Code §§16B-3-1, et seq. and this rule.
4.5.2. The Director shall conduct at least one inspection of a center prior to issuing an initial license, but shall not conduct an inspection until after the following conditions are met:
4.5.2.a. The application and application fee have been received and the application has been determined to be complete; and
4.5.2.b. All requested documentation has verified the readiness of the center for an inspection.
4.5.3. The Director shall conduct periodic unannounced inspections at least once every 12 months to determine the center’s continued compliance with this rule.
4.5.4. The Director has the right to enter a structure that is believed to be operating or maintained as a medical adult day care center without a license to conduct inspections without prior notice. If the operator or person in charge of the suspected medical adult day care center refuses entry, the Director may apply to the circuit court in the county in which the suspected center is located or the circuit court of Kanawha County for a warrant to authorize an inspection or to compel admittance to the premises of the suspected center.
4.6. Complaint Investigation.
4.6.1. Any person may register a complaint with the Director alleging a violation of this rule by a medical adult day care center or an individual alleged to be unlawfully operating a medical adult day care center, by stating the complaint and identifying the name and address of the center.
4.6.2. The Director may conduct investigations as necessary to determine the validity of the complaint and shall notify the licensee of the center or the individual alleged to be operating an illegal medical adult day care center of the complaint at the time of the completion of an investigation.
4.6.3. The Director shall notify the licensee, or the operator, of a medical adult day care center of any corrective action required, the time frame for completion of the corrective action, and any disciplinary action to be taken by the Director.
4.6.4. Except as provided in subsection 4.6.5. of this section, the Director shall keep the names of a complainant and of any participant named in the complaint confidential and shall not disclose the names to the public without written or verbal permission of the complainant and the participant, and his or her legal representative, if any, unless there is an immediate risk to the participant. The Director shall delete the name of a complainant or participant named in a complaint or information contained in the report of an investigation that could reasonably identify the complainant or any participant. Information contained in any report of abuse, neglect, or an emergency situation made in accordance with W. Va. Code §9-6-8 shall be confidential and shall not be released except as provided in that article.
4.6.5. If a complaint becomes the subject of a judicial proceeding, nothing in this rule shall be construed to prohibit the disclosure of information that would otherwise be disclosed in judicial proceedings.
4.6.6. Any type of discriminatory treatment of a participant or employee by whom or on whose behalf a complaint has been submitted to the Director; within one hundred 120 days of the filing of the complaint or the institution of the action, raises a rebuttal presumption that the discriminatory treatment action was taken by the licensee in retaliation for the complaint or action.
4.6.7. If, after an investigation, the Director determines that the complaint has merit, he or she shall advise any injured party of the possibility of a civil remedy. In addition, participants, a participant’s family, or a legal representative or advocate, may also independently pursue civil remedies for violations of this rule.
4.7. Waivers.
4.7.1. The Director, in consultation with the Inspector General, may waive a requirement of this rule if after a thorough investigation, he or she determines that the waiver will not adversely affect the health, safety, welfare or rights of the participants.
4.7.2. The licensee shall submit a completed waiver form to the Office of Health Facility Licensure and Certification.
4.8. Reports and Records.
4.8.1. The Director shall prepare a written report of any inspection or investigation made pursuant to this rule within 15 days of the completion of the inspection and shall transmit to the licensee or facility director, as applicable, a statement of deficiencies that contain the violations of this rule.
4.8.2. The names of participants shall be kept confidential and shall not be disclosed without the participant's written permission or by order of a court of record. Nothing contained in this rule shall be construed to require or permit the public disclosure of confidential medical, social, personal or financial records of any participant. Before releasing a report or record judged public information, the Director shall delete any information regarding a participant that would reasonably permit identification of the participant.
4.8.3. The Director shall make copies of the following available at a reasonable cost for public inspection and upon request:
4.8.3.a. Applications and exhibits;
4.8.3.b. Inspection reports; and
4.8.3.c. Reports of the results of investigations conducted in response to complaints.
4.9. Plans of Correction.
4.9.1. The licensee of a medical adult day care center, found on the basis of inspection or other investigation to have violations of requirements in this rule, shall develop, sign and date a plan of correction, and submit it to the Director within 15 working days of receipt of the statement of deficiencies.
4.9.2. The Director shall require immediate correction of violations identified as constituting immediate and serious threats to the health or safety of a participant or employee.
4.9.3. For deficiencies other than those constituting immediate and serious threats, the licensee shall comply with the rule within 60 days of the inspection, unless the Director waives this requirement and allows more time to correct certain types of deficiencies.
4.9.4. The plan of correction shall specify:
4.9.4.a. The violations to be corrected;
4.9.4.b. The actions taken or proposed to correct the violations and procedures to prevent their recurrence; and
4.9.4.c. The dates on which each violation is corrected or by which each will be corrected, that allows the shortest possible time to reasonably correct each specific violation.
4.9.5. The Director shall notify the licensee in writing of his or her approval, suggested modifications or rejection of the plan of correction, or any part of the plan.
4.9.6. If modifying or rejecting the proposed plan of correction, the Director shall state the reasons for the modification or rejection.
4.9.7. If the Director rejects the plan of correction, the licensee has up to 15 working days from the receipt of the Director’s rejection to submit a revised plan.
4.9.8. The Director may conduct a follow-up on-site inspection to verify the correction of any violations identified during an inspection or any other investigation.
W. Va. Code R. § 71-20-5 Site Location, New Construction, Additions, Renovations, and Alterations
5.1. The requirements of this section apply in total to all proposed medical adult day care facilities.
5.2. For new construction, additions, renovations, or alterations to existing centers, and before construction begins on a proposed center, the applicant shall submit a complete set of drawings and specifications for the architectural, structural, and mechanical work as follows:
5.2.1. An architect or engineer registered in West Virginia shall prepare, sign and seal the submitted set of construction drawings and specifications and submit one set of these documents to the Director and one set to the state fire marshal for approval. The registered architect or engineer shall also inspect the new center or the additions and renovations during the construction phase.
5.2.2. Unless substantial construction is started within one year of the date of approval of final drawings, the architect, engineer or applicant, whichever is applicable, shall obtain a written statement from the Director that the plan approval for construction is still valid and in compliance with this rule.
5.2.3. The Director shall inspect sites for all proposed centers and sites of additions or renovations to existing centers, prior to the applicant starting site development or initiating construction. Sites shall:
5.2.3.a. Have adequate drainage to divert surface water and be located in an area above the 100 year flood plain;
5.2.3.b. Have a water supply that is safe and sized to meet all center needs. Water supplies shall be installed, constructed, maintained, operated and monitored in compliance with Department of Health Legislative Rules, Public Water Systems, W. Va. Code §§64-3-1, et seq., Water Well Regulations, W. Va. Code R. §§64-19-1, et seq., and Cross-Connection and Backflow Prevention, W. Va. Code §§64-15-1, et seq., as applicable; and
5.2.3.c. Have precautions to assure the participants’ safety, if located near railroads, freight yards, traffic arteries or airports.
5.3. A qualified soils engineer shall review any questionable soil conditions, high walls, or surface water runoff, and if conditions require, perform earth core borings and laboratory tests. If engineered soil is installed or other soil tests are conducted, the applicant shall provide the Director with copies of the soil test reports.
5.4. The Director shall inspect and approve all construction, new additions, renovations or alterations prior to the admission of new or additional participants. When construction is substantially complete, the applicant shall submit a substantial completion form signed by all the parties involved and a completed inspection request form to the Director.
5.5. The applicant is responsible for paying all fees for site inspections of new construction or major renovations, architect reviews of drawings and specifications and inspections of new projects before they begin.
5.6. The applicant shall submit plans for the addition, removal or modification of equipment that is permanently affixed to the building or that may otherwise involve or necessitate new construction, alterations or additions to the center to the Director for approval.
5.7. Other changes involving equipment that may or may not require physical changes in the center, but that may relate to other standards and requirements of this rule may require the Director’s approval. The applicant shall request approval in advance from the Director regarding a specific change or rearrangement. Areas in which changes are likely to require approval include changes to the physical plant.
5.8. The center shall comply with the international building code, 2003 edition, or the most current edition adopted as the State Building Code, W. Va. Code R. §§87-4-1, et seq.
5.9. The center shall comply with the Fire Commission Legislative Rule, Fire Code, W. Va. Code R. §§87-1-1, et seq.
5.10. The center shall comply with the Americans with Disabilities Act (ADA) and the American National Standards Institute (ANSI) codes ACT 42.U.S.C. §§12101, et seq.
5.11. The center shall comply with local building or zoning codes if they require standards higher than those required by this rule.
5.12. The center shall have an all-weather hard surface road that connects directly to a highway.
5.13. The center shall have parking areas with:
5.13.1. Clean, solid earth beds, a compacted stone base and a hard surface all weather finish coat, free of broken, gaped or uneven paving, with slopes that permit good drainage; and
5.13.2. Adequate vehicular parking spaces for all staff on duty and space to accommodate family and visitors at a ratio of one parking space to every five participants.
5.13.3. A designated area for loading and unloading participants that provides a covered walkway from the loading and unloading area to the facility entrance, to provide protection from inclement weather.
5.14. The center shall have hard, slip resistant surface concrete walks at all exits that connect to the main walk or parking area, that are a minimum of 48 inches wide.
5.15. The applicant shall ensure that low windows, open porches, changes in floor level and similar potential hazards are designed so that the danger of accidents is minimized and that dangerous areas on the site are safeguarded.
5.16. Outdoor areas used by participants shall be enclosed by a fence or barrier to create a boundary that prevents participant elopement.
5.17. The center shall have an audible staff call system in all areas occupied by participants where direct visual contact is not possible by staff at all times. These areas include toilet and bathing areas, or private rest areas used by participants.
5.18. The center’s toilet and bathing facilities shall provide the following:
5.18.1. A minimum of two toilet rooms for participant use and thereafter, toilet rooms shall be provided at a ratio of no less than one toilet and lavatory for every 10 participants. At least one toilet room shall be equipped to accommodate a two person assisted transfer between wheelchair and toilet. Each toilet room shall contain a flushing toilet and hand washing sink, with a mirror over the sink;
5.18.2. A minimum of one handicapped accessible toilet room for use by staff and visitors;
5.18.3. A minimum of one (1) fully handicapped accessible bathing facility with a toilet, lavatory, and a bathtub or shower, equipped with non-slip surfaces, a shower seat and safety rails to aid in maintaining the personal hygiene of participants;
5.18.4. Grab-bars at toilets, tubs, and showers that are securely mounted to the finished wall with a steel plate or a two inch by six-inch wood plate backing behind the wall. Grab bar brackets shall be spaced to support 250 pounds of a concentrated load at any point on the grab bar; and
5.18.5. Toilet room and bathroom doors with locking type hardware that swing outward and can be opened from outside in the event of an emergency.
5.19. The center shall have a minimum of 500 square feet of space for dining, leisure and activities for the first five participants. Thereafter, there shall be a minimum of 35 square feet per participant, excluding toilet rooms, bathing facilities, offices, and storage areas.
5.19.1. The dining area shall provide no less than 15 square feet per participant and be equipped with tables and seating to accommodate each participant.
5.19.2. The leisure and activity area shall provide no less than 20 square feet per participant.
5.19.3. If specialty services and treatments are provided increased square footage is required to ensure sufficient space for treatment and equipment storage at the following rate:
5.19.3.a. For Alzheimer’s and dementia, 40 square feet per participant;
5.19.3.b. For physical therapy rehabilitation therapy, 50 square feet per participant; and
5.19.3.c. For developmental disability, 70 square feet per participant.
5.20. The center shall provide a minimum of one private treatment/examination room for use by participants who require individualized treatment. Treatment/examination rooms shall be equipped with a minimum of one bed or examination table, provisions for privacy for each bed or examination table if there is more than one hand washing facilities.
5.21. The center shall provide a private rest area for participants who are ill or need to rest. The rest area shall provide no less than 120 square feet of clear floor space and be located near a toilet room.
5.22. If the center provides laundry services, the laundry room shall have separation between the soiled and clean laundry, mechanical ventilation in the soiled area, a clean area large enough for folding linens, and venting to the outside for any electric or gas dryer.
5.23. The center shall have at least one housekeeping closet or room that contains a service sink for a sanitary means of disposal of wastewater in an area inaccessible to participants.
5.24. The center shall have sewage disposal in accordance with Department of Health Legislative Rule, Sewer Systems, Sewage Treatment Systems, and Sewage Tank Cleaners, W. Va. Code R. §§64-9-1, et seq., and Sewage Treatment and Collection System Design Standards, W. Va. Code R. §§64-47-1, et seq.
5.25. Heating, ventilation and air conditioning systems shall comply with the State Building Code, W. Va. Code R. §§84-4-1, et seq., and the American Society for Heating Refrigeration and Air Conditioning Guidelines.
5.26. The center shall be a single-story structure or have access and services on ground floor level.
W. Va. Code R. § 71-20-6 Administrative Requirements
6.1. General Administrative Requirements.
6.1.1. The licensee shall establish regular hours of operation of not less than four hours per day and not more than 14 hours per day, a minimum of five days per week. The center’s hours of operation shall be during times that encompass a normal work week for participant’s caregivers.
6.1.2. The licensee shall develop and adopt written policies and procedures that are consistent with this rule and specific to the medical adult day care center, governing the care and safety of participants, and all other policies and procedures required by this rule.
6.1.3. The licensee shall review all policies and procedures at least annually and shall sign and date the policies and procedures at the time of adoption, modification, and review.
6.1.4. The licensee shall have a copy of the policies and procedures available for review on request from employees, participants and the general public.
6.1.5. The licensee shall have a participant bill of rights, and rules of participation governing participant behavior and responsibilities, that are both in writing and consistent with this rule.
6.1.6. Unless otherwise approved in writing by the Director, a licensee shall not rent, lease or use any part of the center for any purpose other than the operation of a medical adult day care center.
6.1.7. Any individual, including an employee, or his or her spouse having a financial interest in the center shall not serve as a participant’s legal representative.
6.2. The Licensee.
6.2.1. The licensee shall comply with this rule, the terms of the medical adult day care center’s license, W. Va. Code §§16B-3-1, et seq., other applicable federal, state or local laws, and with the center's policies.
6.2.2. The licensee shall protect the physical and mental well-being of participants.
6.2.3. The licensee shall maintain the accurate records and reports required by this rule.
6.2.4. The licensee shall administer the center on a sound financial basis consistent with good business practices and shall maintain fiscal records that accurately identify, summarize, and classify funds received and disbursed for the operation of the center. The issuance of bad checks or accumulation of delinquent bills constitutes evidence that the licensee lacks satisfactory proof of financial ability to operate the center as required.
6.2.5. The licensee shall notify the Director in writing immediately and no later than within 10 days of any permanent change in the director and in the supervising registered professional nurse of the center. The center shall not operate more than 30 days without a qualified director or supervising registered professional nurse.
6.2.6. The licensee shall report major incidents, as defined in section 3.28. of this rule, to the Office of Health Facility Licensure and Certification as soon as possible, and no later than the next business day.
6.3. Director.
6.3.1. The center shall employ a qualified facility director who is at least 21 years of age and has completed at least two years of post-secondary education or has a high school diploma or the equivalent and a minimum of five years’ experience and training in a social service or health care field with elderly or disability populations, at least two years of which is in a supervisory and administrative capacity.
6.3.2. The facility director shall have a personal history that is free of evidence of abuse, fraud, or substantial and repeated violations of applicable laws and rules in the operation of any health or social care facility or service organization, or in the care of dependent persons; or conviction of crimes related to the care to a dependent persons as evidenced by a criminal investigative background check by the West Virginia state police through the central abuse registry.
6.3.3. The facility director shall participate in eight hours of training related to the operation of a center annually and a record of this training shall be available for review.
6.3.4. The facility director shall know the requirements of this rule, develop and execute all policies and procedures required by this rule, ensure compliance with all applicable laws, and ensure the adequacy and appropriateness of services delivered to the participants.
6.3.5. The facility director or a responsible employee, designated in writing and with the authority to make decisions in the facility director’s absence, shall be present and in charge of the center at all times.
6.4. Staffing Requirements.
6.4.1. The center shall have a nurse on duty during all primary hours of operation, and on call during all other hours of operation. The nurse shall be responsible for provision of nursing services, medication administration and oversight of all participant care needs. Back-up coverage must be arranged in the event of absence due to illness or vacation.
6.4.2. The center shall employ or contract with a registered professional nurse to provide oversight of nursing services and participant care. The registered nurse shall possess a valid license to practice in West Virginia and at least two years’ experience or specialized training and one year experience in direct care of elderly or disability populations. The center shall maintain verification of required credentials on file.
6.4.3. The registered professional nurse shall be in the center a minimum of eight hours per week. The supervising registered nurse shall:
6.4.3.a. Provide or supervise the provision of nursing services for each participant;
6.4.3.b. Coordinate development and on-going review of participant care plans;
6.4.3.c. Note any significant changes in the participant’s behavior and condition and report these to the participant’s family;
6.4.3.d. Ensure the availability of needed medications;
6.4.3.e. Assist in obtaining emergency treatment and consultation;
6.4.3.f. Ensure documentation of a nursing note for each participant at least monthly, or more frequently if indicated by the participant’s condition, that addresses change in condition, special needs including dietary compliance, medication administration, assistance with personal care and other health related issues as appropriate. If the monthly nursing note is completed by a licensed practical nurse, the registered nurse shall review and co-sign the monthly note;
6.4.3.g. Supervise the storage, handling and administration of all participant medications; and
6.4.3.h. Assist as necessary in the delivery of other center services.
6.4.4. If licensed practical nurses are employed, they shall work under the supervision of a registered professional nurse who is either on staff or under contract with the center. The licensed practical nurse shall possess a valid license to practice in West Virginia and at least one year experience or specialized training in direct care of elderly or disability populations. The center shall maintain verification of required credentials on file. The licensed practical nurse shall:
6.4.4.a. Provide nursing services to each participant under the supervision of the center’s registered nurse;
6.4.4.b. If delegated by the registered nurse, write at least monthly, a nursing note for each participant in the participant record; and
6.4.4.c. Assist as necessary in the delivery of other center services.
6.4.5. The center shall employ a qualified professional to be responsible for planning and implementing an activity program to meet the needs of all participants. The activity director shall:
6.4.5.a. Be certified by the national certification council for activity professionals; (NCCAP) through any of the NCCAP’s approved certification tracks as an activities director certified (ADC);
6.4.5.b. Be a qualified therapeutic recreation specialist who has two years of experience in a social or recreational program within the last five years, one of which was full-time in an activities program in a health care setting;
6.4.5.c. Be an occupational therapist or occupational therapy assistant currently licensed to practice in the state of West Virginia; or
6.4.5.d. Have a high school diploma or equivalent and demonstrated ability to provide for an ongoing program of activities designed to meet the interests and the physical, mental and psychosocial needs of varied individuals and have completed an NCCAP approved 90-hour modular education program for activity professionals (MEPAP) (part I) and the 90-hour practicum. An activities director, who is qualified by virtue of having completed an NCCAP-approved training course and practicum shall complete 10 hours of activity related to continuing education annually, with written evidence of continuing education maintained on file.
6.4.6. The activities director shall:
6.4.6.a. Complete activity assessments for participants;
6.4.6.b. Develop, consistent with participant plans of care, activity programs that meet individual participant needs;
6.4.6.c. Supervise the activity program and any assistants or volunteers;
6.4.6.d. Participate in the quarterly review of each participant’s care plan;
6.4.6.e. Document monthly in the participant record regarding the participant’s involvement in activities; and
6.4.6.f. Develop and maintain a weekly calendar of planned activities, posted in the center, that includes each activity, and the time and duration of each.
6.4.7. Direct care staff shall have a minimum of a tenth-grade education, at least one year of full-time or part-time equivalent paid or volunteer experience working with adults in a health care or social service setting and be able to read and write. The direct care staff shall:
6.4.7.a. Assist participants as needed with personal care, including dressing, grooming, personal hygiene, use of special aids, accident prevention and activities of daily living;
6.4.7.b. Assist participants at mealtimes including cutting food and feeding participants as needed;
6.4.7.c. Continually monitor and supervise participants; and,
6.4.7.d. Assist and encourage activity involvement and provide individualized activities as needed.
6.4.8. If the center prepares meals on-site, the facility director shall designate a staff member to serve as food service supervisor. Prior to assuming these duties, this individual shall receive specialized training in food management and preparation, including preparation of therapeutic diets. The food service supervisor shall:
6.4.8.a. Oversee the daily operation of food preparation in accordance with menus prepared or approved by a registered dietician; and
6.4.8.b. Ensure that therapeutic diets are served as ordered by the physician.
6.4.9. Drivers used to transport participants shall possess a valid West Virginia driver’s license or chauffeur’s license, if required under the provisions of W. Va. Code §§17B-2-1, et seq., current first aid and cardiopulmonary resuscitation certification, and training in emergency procedures. The driver shall have experience in transporting passengers.
6.4.10. Volunteers used in the program shall serve as an adjunct to staff and shall possess qualifications and experience appropriate to the services they render. They shall receive orientation to the program and training on the specific tasks to be performed prior to working with participants and are subject to the same regulations on confidentiality as are paid staff members.
6.4.11. The center shall maintain a sufficient number of staff at all times to meet the care and service needs of all participants in the center. A minimum staffing level of one full-time staff member involved in direct services to participants for each six participants shall be maintained. Additional staff shall be added to meet the participants’ needs. Volunteers shall not be used to meet the required staff ratio unless they are professionally trained and/or certified in a health occupation and oriented and trained as other staff. If a participant experiences a poor outcome related to a lack of supervision or unmet care needs, the Director may require the licensee to add staff.
6.4.12. The center shall have sufficient staff to meet the laundry, food service, housekeeping and maintenance requirements of this rule.
6.4.13. The licensee shall maintain staffing records that accurately reflect the actual employees on duty in the center at any given time, including the hours they have worked, and provide them to the Director upon request.
6.5. Personnel Records.
6.5.1. The licensee shall maintain a confidential personnel record for each employee, including the director, and a record for volunteers who provide personal assistance to more than one participant. Each personnel record shall contain at least the following:
6.5.1.a. The employee’s date of employment or volunteer’s start date, current home address and telephone number, social security number and proof of compliance with age requirements of applicable federal and state laws;
6.5.1.b. Documentation of a screening by all required abuse registries completed prior to hiring. The licensee shall not hire or maintain as an employee any individual who is listed on these registries. If there is a break in employment of one year or greater, the abuse registry screenings shall be repeated;
6.5.1.b.1. Prior to hiring an individual, the licensee shall submit the required information for a screening through the West Virginia state police central abuse registry regarding previous convictions involving abuse, mistreatment or neglect of dependent populations, or theft of the property of those populations. The center shall maintain written documentation of the information submitted and the results of the screening;
6.5.1.b.2. Documentation of the results of a screening by the state nurse aide abuse registry to determine if the individual is listed on the nurse aide abuse registry;
6.5.1.b.3. For licensed personnel, documentation of the results of a screening by the applicable licensing board; and,
6.5.1.b.4. Documentation of the results of a screening by the Bureau for Children and Families for substantiated abuse or neglect.
6.5.1.c. A position title and proof of any required education or license; and
6.5.1.d. A health record containing the results of a tuberculosis skin test - purified protein derivative (PPD) or chest x-ray as indicated by exposure, prevalence or currently accepted medical practice in settings that serve vulnerable populations as indicated by the Director. The tuberculosis skin test or chest x-ray shall be completed prior to the employee working with participants. Thereafter, a tuberculosis screening shall be completed annually in accordance with the current Center for Disease Control (CDC) guidelines.
6.5.2. The licensee shall maintain personnel records on file at the center for at least three years following the termination of an employee and shall document the date of the termination.
6.6. Employee Orientation and Training.
6.6.1. The licensee shall provide and maintain a record of training to new employees prior to scheduling them to work unsupervised, and no later than within the first 14 days of employment and annually thereafter. Training shall include:
6.6.1.a. At a minimum, emergency procedures and disaster plans; the center’s policies and procedures; participant rights; confidentiality; abuse prevention and reporting requirements; complaint procedures; specialty care based on individualized participant needs and service plans; the provision of group and individual participant activities; infection control; and needs of the elderly and disability populations;
6.6.1.b. Training on Alzheimer’s disease and related dementias at least two hours in duration that includes: basic understanding about Alzheimer’s disease and other dementias; communication approaches and techniques for use when interacting with persons with Alzheimer’s disease or a related dementia; prevention and management of problem behaviors, and activities and programming appropriate for these individuals; and,
6.6.1.c. For new employees, a minimum of five (5) days of supervised on the job training.
6.6.2. The licensee shall maintain a record of training provided to all staff that identifies at a minimum, the name of each participant, the name of the trainer, the date of the training and detailed content for the training.
6.6.3. All employees shall have current first aid training and current cardiopulmonary resuscitation (CPR) training. A record of this training shall be available for review.
6.7. Administrative Admission and Discharge.
6.7.1. The licensee shall not discriminate against participants or a prospective participant on the basis of race, national origin, religion, age, gender, sexual orientation or disability.
6.7.2. The licensee shall develop an admission packet to be given to the prospective participant that includes, at a minimum:
6.7.2.a. Admission criteria;
6.7.2.b. Information required for admission including but not limited to the participant’s medical history, recent hospital and nursing facility admissions, current medications, dietary requirements, functional needs, limitations to participation in program activities, and special therapies, when applicable;
6.7.2.c. Discharge criteria, including notification policies;
6.7.2.d. How to file a complaint;
6.7.2.e. Medication storage, handling, distribution, and disposition, responsibility for payment and ensuring availability of medications;
6.7.2.f. The requirements for assuring availability of a portable source of oxygen for participants who require oxygen;
6.7.2.g. The days and hours the program is in operation, a schedule of holidays when the program is closed and procedures used for unplanned program closure due to disaster or inclement weather;
6.7.2.h. Rules governing participant behavior and responsibilities including but not limited to the minimum number of hours per week, if applicable;
6.7.2.i. The participant's bill of rights;
6.7.2.j. How the participant's personal belongings will be protected from loss and theft;
6.7.2.k. The requirements for medical examinations and treatment orders;
6.7.2.l. How participant confidentiality will be ensured, during treatment, participant records, etc.;
6.7.2.m. Whether or not the participant will be assisted in making appointments for medical, dental, nursing or mental health services, and if so, how transportation to and from these services will be arranged;
6.7.2.n. Applicable policies and procedures not otherwise addressed;
6.7.2.o. Notification of the use of visual and auditory devices to monitor common areas of the medical adult day care center, if applicable; and
6.7.2.p. A statement that employees or volunteers of the center shall not manage personal funds for participants.
6.7.3. The licensee shall enter into a written contract with the participant on admission to the center that specifies, at a minimum, the following information:
6.7.3.a. The type of client population that the center is licensed to serve and will serve;
6.7.3.b. The various services that the center will provide to meet the participants’ needs, including cardiopulmonary resuscitation, and how they will be provided;
6.7.3.c. An hourly, daily, weekly or monthly contract price, full disclosure of all costs including what changes in care needs will result in increases, additions or modifications to the costs, the refund policy when the service period paid for is more than the service received and an assurance that the participant shall not be held liable for any cost that was not disclosed; and,
6.7.3.d. Whether or not the center provides transportation, and if so, the associated cost.
6.7.4. The licensee shall provide a copy of the contract to each party in the contract.
6.7.5. Thirty days prior to any increase, addition or other modification of the rates of the participant’s care or services, the licensee shall give the participant written notice of the proposed change.
6.7.6. The licensee shall give the participant notice of and file a copy of the notice in the participant’s record of the 30-day written notice prior to discharge.
6.7.7. The licensee shall maintain documentation of all agreements or contracts entered into between the participant and the licensee.
6.7.8. The licensee shall maintain a register of all participants in order by the dates of the participants’ admissions. The register shall include each participant’s name, the date of admission, and the date of his or her last day at the center.
W. Va. Code R. § 71-20-7 Participant Rights
7.1. General Rights.
7.1.1. The licensee shall post in a conspicuous place the medical adult day care center’s license, a copy of the participants' rights, the participant’s responsibilities, and the phone numbers for the abuse hotline and the office of the licensing agency.
7.1.2. If a legal representative has been appointed for, or designated by, any participant as having the authority to exercise one or more of the participants’ rights for the participant, the licensee shall permit the legal representative to exercise the authority. If the legal representative exercises the authority for a participant, it shall be in a manner consistent with applicable federal and state laws. The licensee shall keep a copy of the document granting legal authority to a legal representative in the participant’s record.
7.1.3. Nothing in this rule shall in any way be construed to diminish or deprive any individual of his or her rights under federal and state laws.
7.1.4. A participant has the right to be free from restraint, interference, coercion, discrimination or reprisal from the licensee in exercising his or her rights.
7.1.5. A participant has the right to be free from discriminatory practices related to admission or services on the grounds of race, religion, national origin, age, gender, sexual orientation or disability.
7.1.6. A participant has the right to view the results of inspections and complaint investigations conducted by the licensing agency. The licensee shall make available, in a place accessible to participants, the deficiencies cited during the most recent survey, any complaint investigation conducted within the preceding 12 months, and the center’s plan of correction.
7.2. Treatment.
7.2.1. A participant has the right to participate in planning his or her overall care, to use the physician of his or her choice, to be fully informed in advance about care and treatment that may affect him or her, to make advanced directives about his or her medical care and to refuse treatment.
7.2.2. The licensee shall ensure that no participant is abused, exploited, neglected, mistreated, or restrained by physical or chemical means. Staff shall only use physical restraints in an emergency under physician's order, for the safety of the participant or others in the medical adult day care center until the participant is transferred to a more appropriate setting and shall not be used for a period exceeding two hours. Restraints used during emergencies are limited to a cloth vest or soft belt restraints, and only trained staff may apply a restraint. One on one staff supervision shall be provided during the duration of the time the restraints are in place.
7.2.3. The licensee or staff shall report neglect, abuse or emergency situations immediately, in accordance with W. Va. Code §9-6-9, to the local adult protective services office or contact the adult protective services hotline number. In all situations of suspected abuse or neglect, the West Virginia Department of Human Services Adult Protective Services reporting form shall be completed within 48 hours and sent to the appropriate parties as written follow-up to the immediate report. In addition, the licensee or staff shall contact the medical adult day care center’s licensing agency as provided in subsection 7.2.6. of this subsection. The Director may report alleged failures by a licensed health care professional to report alleged incidents of neglect or abuse or emergency situations to the individual's licensing board.
7.2.4. The licensee shall ensure that all allegations involving abuse, exploitation or neglect are immediately and thoroughly documented and investigated by the licensee, or his or her designee, on receipt of the allegation. While the investigation is in progress, the licensee shall take measures to ensure that further abuse does not occur.
7.2.5. If the allegation is substantiated, the licensee shall assure that appropriate sanctions are invoked or actions are taken to prevent the recurrence of alleged abuse, exploitation or neglect.
7.2.6. The licensee shall notify the licensing agency within 72 hours of the date of an allegation of abuse, exploitation, or neglect. The licensee shall concurrently forward to the licensing agency documentation of the investigation, the results of the investigation and the response to the investigation.
7.2.7. A participant has the right to refuse to participate in experimental research. A participant may participate in experimental research only when he or she has given prior written informed consent that conforms with applicable federal and state laws.
7.2.8. A participant has the right to make choices regarding the activities of his or her daily life.
7.2.9. A participant has the right to be free to leave the center and grounds according to his or her needs and capabilities as documented in the service plan.
7.2.10. A participant has the right to personal privacy and confidentiality, including accommodations, treatment, records, written and telephone communications, personal assistance, and visits and meetings of family members.
7.2.11. The use of visual and auditory devices to monitor areas of the medical adult day care center is restricted to common areas only. The licensee shall provide written notice to the participant or his or her legal representative of the use of these devices at the time of admission and also post a notice about their use in a prominent place in the center.
7.2.12. A participant has a right to privacy in treatment and care. No person shall enter a treatment area where a participant is receiving treatment without identifying himself or herself to the participant and receiving the participant's permission to enter.
7.2.13. A participant has the right to voice grievances with respect to treatment or care provided without discrimination or reprisal for voicing the grievance.
7.2.14. A participant has the right to prompt action by the licensee to resolve any complaints the participant has, including those with respect to the behavior of other participants. The licensee shall respond to the complainant in writing no later than four days after the complaint is filed.
7.2.15. A participant has the right to refuse to perform services for the center.
7.3. Access, Visitation and Communication.
7.3.1. A participant has the right to participate in social and religious activities of his or her choice.
7.3.2. A participant has the right to meet and communicate privately with persons of his or her choice.
7.3.2. A participant has the right to assemble and organize with other participants to solicit and recommend improvements in the medical adult day care center’s services and to resolve problems that arise between the participants and the licensee.
7.3.4. A participant has the right to receive information from agencies acting as client advocates, such as the West Virginia Advocates program, and to contact these agencies.
7.3.5. All of the following shall have immediate access to any participant and the premises of the medical adult day care center: any representative of the state acting in an official capacity related to medical adult day care centers; the participant's individual physician; and agencies responsible for the protection and advocacy system for mentally retarded or developmentally disabled individuals and the mentally ill.
W. Va. Code R. § 71-20-8 Participant Services
8.1. Admission and Discharge.
8.1.1. The licensee shall not admit to the medical adult day care center individuals requiring ongoing or extensive nursing care and shall not admit or retain individuals requiring a level of service that the center is not licensed to provide or does not provide.
8.1.2. The licensee shall seek immediate treatment for a participant or may refuse to admit or retain a participant if there is reason to believe that the participant may suffer serious harm, or is likely to cause serious harm to himself, herself or to others, if appropriate interventions are not provided in a timely manner.
8.1.3. If a participant has care needs that exceed the level of care for which the center is licensed or can provide, the licensee shall inform the participant, or his or her legal representative, of the need for discharge from the center.
8.2. Participant Records.
8.2.1. The licensee shall retain participants’ records in a secure area in the center and shall make the records available for inspection by the Director.
8.2.2. Upon a participant’s admission, the licensee shall start a record for him or her that includes:
8.2.2.a. The participant's name, social security number, date of birth, gender, marital status, and religious preference, if any;
8.2.2.b. The names, addresses and telephone numbers of the following, if applicable: the participant’s physician, legal representative, person or agency responsible for the participant’s payments, next of kin or person to be notified in case of an emergency, and any case management or service agency involved in the participant’s care; and
8.2.2.c. Advanced directives, allergies, all contacts by the center’s staff with the participant’s physician and observations by licensed nurses, physicians and others authorized to care for the participant as related to care and services provided to the participant by the center.
8.2.3. The licensee shall keep in each participant’s record current documentation regarding the participant’s health status, any changes in health status and staff responses to the changes including but not limited to:
8.2.3.a. An initial and annual health assessment;
8.2.3.b. A functional needs assessment;
8.2.3.c. A service plan;
8.2.3.d. A daily record of attendance;
8.2.3.e. A daily record of medications, treatments and services provided;
8.2.3.f. Physician’s orders for medications and treatments;
8.2.3.g. An activity assessment;
8.2.3.h. Specialty evaluations;
8.2.3.i. Progress notes, signed and dated by relevant staff; and,
8.2.3.j. A current photograph.
8.2.4. The licensee shall keep participant records in safe storage for at least five years from the date of discharge of the participant. If the center ceases to operate, the licensee shall procure a holding area for the participant records that will ensure the confidentiality and safety of the records from loss, destruction or unauthorized use.
8.3. Health Assessments and Service Plans.
8.3.1. The facility director or the registered professional nurse shall conduct a pre-admission interview with the individual and his or her family if applicable, to determine eligibility for participation in the medical adult day care program.
8.3.2. An initial health assessment shall be obtained for each participant. The initial health assessment shall be in writing, signed and dated by a physician or other licensed health care professional, authorized under state law to perform this assessment, not more than 60 days prior to the participant's admission, or no more than five working days following admission. This assessment shall be completed at least annually thereafter. The admission and annual health assessment shall include a tuberculosis skin test (purified protein derivative PPD) or chest x-ray as indicated by exposure, prevalence or risk according to current medical practice in settings serving vulnerable populations as indicated by the Director. Thereafter, a tuberculosis screening shall be completed annually.
8.3.3. A licensed health care professional employed by the center shall complete an individualized functional needs assessment for each participant in writing within seven attendance days. At a minimum, the participant's assessment shall include a review of health status and functional, psycho-social, activity and dietary needs.
8.3.4. The registered professional nurse shall complete an initial service plan on the participant’s first day of attendance to direct the provision of treatment and services until the regular service plan is developed by the multi-disciplinary treatment team.
8.3.5. The multi-disciplinary treatment team shall develop a service plan for each participant within 14 attendance days of admission. Development of the service plan shall be coordinated by the registered professional nurse and shall:
8.3.5.a. Be available to staff to use as a guide for providing participant care;
8.3.5.b. Be based upon the participant’s functional needs assessment and individual needs;
8.3.5.c. Include, at a minimum, the type of assistance needed from staff to provide personal care services, to administer prescribed medications and treatments, to follow any planned diet, rest or activity regimen, to engage in activities and programs appropriate to the individual’s level of functioning, and to use equipment such as hearing aids, glasses, canes, wheelchairs, and other assistive devices; and
8.3.5.d. Specify the hours to be spent by the participant at the center.
8.3.6. The licensee shall ensure that the assessment and service plans reflect the participant’s current needs and are updated periodically.
8.3.6.a. The participant’s health assessment shall be updated annually by a physician or other licensed health care professional, authorized under state law or as indicated by a significant change in the participant’s condition;
8.3.6.b. The nurse and therapists, if applicable, shall independently review and re-evaluate the service plan and shall update the plan to reflect any changes in the participant’s treatment or condition; and
8.3.6.c. The service plan shall be reviewed quarterly by the full multi-disciplinary treatment team and updated to reflect any changes in the participant’s treatment or condition.
8.4. Medications and Treatments.
8.4.1. The licensee shall ensure that all participant care and treatment is provided by appropriate individuals as required by state and federal law.
8.4.2. The licensee shall provide all participant care, treatment and services in accordance with current standards of practice using appropriate infection control techniques.
8.4.3. A prescription, written or verbal order from a professional authorized by state law to prescribe medications is required for altering, discontinuing and administering or self-administering prescription and over-the counter medications, treatments, and therapies. The licensee shall keep copies of the prescriptions or written orders in the participant's record.
8.4.4. A licensed health care professional shall determine whether or not a participant is capable of self-administration of medications or requires supervision of self-administration of medications in accordance with section 3.40 of this rule and shall document it in the participant’s medical record prior to the participant self-administering medications.
8.4.5. The prescribing health care professional who gives a verbal order shall review and sign the order within thirty working days of the original order date.
8.4.6. The attending physician or prescribing health care professional shall review the medication regimen of each participant at least annually. The participant's record shall contain documentation of this review.
8.4.7. The licensee shall keep a record of all medications given to each participant indicating each dose given. The record shall include the participant 's name; the name of the medication; the dosage to be administered and route of administration; the time or intervals at which the medication is to be administered; the date the medication is to begin and end; the printed name, initials and signature of the individual who administered the medication; and any special instructions for handling or administering the medication, including instructions for maintaining aseptic conditions and appropriate storage.
8.4.8. The licensee shall keep medications in a locked room, cabinet or other storage receptacle, accessible only to the appropriately licensed staff responsible for medications. If a participant is capable of self administration of medication, the licensee shall provide him or her resources to store medications in a manner to be inaccessible to other participants.
8.4.9. The licensee shall store all medications in their original containers, legally dispensed and labeled in accordance with the rules of the West Virginia board of pharmacy, for the participant for whom it has been prescribed, including the name and strength of the medication, the manufacturer’s name, its lot number, and expiration date. Only a licensed pharmacist shall re-label medications. If the prescribing health care provider changes medication directions, the licensee shall have a written signed and dated order for the change in the participant’s record.
8.4.10. If refrigeration of medication is required, the licensee shall provide: a refrigerator in a locked room; a locked refrigerator; or a locked box within the refrigerator for storage. A thermometer is required in a refrigerator storing medications. The licensee shall store refrigerated medications within the recommended temperature range on the medication package.
8.4.11. If Schedule II drugs of the Uniform Controlled Substances Act W. Va. Code §§60A-1-101, et seq., are administered, these drugs shall be stored in a manner so that they are securely protected by two locks. The key to the separately locked Schedule II drugs shall not be the same key that is used to gain access to non-scheduled drugs.
8.4.12. When a participant requires oxygen, the licensee shall assure there is an appropriate storage area for extra tanks. The licensee shall post no smoking signs conspicuously and prohibit smoking in any location when oxygen is in use.
8.4.13. The licensee may provide or coordinate restorative services for participants as ordered by their physician, including occupational, physical and speech therapy. If restorative services are provided, documentation must be maintained in the participant record about the participant progress and the service provider shall be included as a member of the participant’s multi-disciplinary treatment team responsible for development and review of the participant’s service plan.
8.5. Accident, Illness and Major Incident Procedures.
8.5.1. The licensee shall have readily available at all times a standard first-aid kit, or its equivalent, to provide emergency aid for commonly occurring household injuries.
8.5.2. When a participant has an illness or accident that results in an injury or a participant complaint, the nurse shall assess the severity and cause of the illness or accident, advise staff of the treatment needed related to the accident or illness, and record actions taken in the participant's record. If the participant needs emergency assistance, the staff on duty shall first obtain the necessary assistance.
8.5.3. Staff shall monitor and document the participant's condition at least once every two hours while at the center following the accident or the onset of the illness or more frequently if specified by the registered nurse or other licensed health care professional.
8.5.4. When a major incident or any significant change in the participant's condition occurs, the staff shall promptly notify the participant's responsible party or next of kin and document this notification in the participant’s record.
8.5.5. If an epidemic occurs or a reportable disease is diagnosed, the licensee shall comply with the recommendations of the local public health authority in handling and reporting it.
W. Va. Code R. § 71-20-9 Activities
9.1. The licensee shall provide an activity program designed to promote the highest level possible in all dimensions of life including physical, psychological, social, and spiritual, for each participant and shall consider individual differences in age, health status, sensory deficits, ethnicity, religious affiliation, values, needs, interests, abilities, and skills by providing opportunities for a variety of types and levels of involvement.
9.2. The activity director shall complete an assessment of each participant within fourteen (14) attendance days of admission to determine the participant’s needs, capabilities, and interests and develop an individualized activity plan for the participant based on the results of this assessment. The activity director shall review participant activity needs at least quarterly and update the activity assessment as needed.
9.3. The center shall have a written plan for the center’s activity and recreation program that shall include a variety of activities as appropriate to meet the individual needs of participants including but not limited to:
9.3.1. Social and interpersonal activities that provide opportunities for enjoyment and development of social relationships;
9.3.2. Diversional and recreational activities designed to emphasize individual accomplishment, provide diversion and aid in adjustment to long-term rehabilitation;
9.3.3. Opportunities for participation in volunteer service activities;
9.3.4. Intellectual activities designed to provide mental stimulation, learning and foster creativity;
9.3.5. Physical activities and exercise to promote physical functioning, mobility, strength and endurance;
9.3.6. Individual and group activities;
9.3.7. Activities appropriate for participants with Alzheimer’s disease or related dementia; and,
9.3.8. Rest periods in accordance with participant needs.
9.4. The activity program shall:
9.4.1. Provide a minimum of 20 hours per week, four hours per day, of various types of scheduled activities;
9.4.2. Provide alternative programming for participants unable or unwilling to take part in a scheduled group activity;
9.4.3. Provide a weekly calendar in large print that lists the type, the time and duration of all social and recreational activities for the participants. The activity calendar shall be posted in the center in a conspicuous location and be provided to participants at least one week in advance; and
9.4.4. Maintain written documentation about activities provided and at least quarterly documentation of a participant’s involvement in activities as part of his or her service plan.
W. Va. Code R. § 71-20-10 Dietary Services
10.1. The licensee shall provide meals that are in substantial compliance with the current Recommended Dietary Allowances of the Food and Nutrition Board of National Academy of Sciences, National Research Council, or as specified in this rule, except as ordered by a physician.
10.2. The licensee shall ensure that each participant is provided freshly prepared meals and snacks:
10.2.1. Each meal shall be equivalent to at least one third of the recommended daily dietary allowance as established by the Food and Nutrition Board of the National Academy of Sciences, National Research Council;
10.2.2. Participants attending four hours or less shall be provided one meal;
10.2.3. Participants attending the center five to eight hours per day shall be provided one hot meal and two snacks daily;
10.2.4. Participants attending the center more than eight hours per day shall be provided two hot meals and two snacks daily;
10.2.5. Meals shall meet participant requirements for special diets, participant’s needs and choices, as identified in his or her needs assessment.
10.3. Meals shall provide a variety of foods as follows:
10.3.1. Breakfast, if served: fruit or juice, cereal, whole-grain or enriched bread products, and Grade A vitamin D milk; and
10.3.2. Noon and evening meals: protein sources, such as meat, poultry, fish, eggs, cooked dried legumes, cheese or peanut butter; vegetables or fruit; whole-grain or enriched grain food products; and Grade A vitamin D milk.
10.4. The licensee shall provide therapeutic or modified diets, as ordered by the participant’s physician, according to written instructions that includes types and amounts of food to be served.
10.5. The licensee shall encourage participant involvement in menu planning with consideration of individual participant preferences.
10.6. The licensee shall have a written menu prepared or approved by a registered dietician that includes all meals and snacks and that offers a variety of foods. Menus shall be prepared at least two weeks in advance. Alternate food selections shall be available to allow for individual preferences and food allergies. The menu shall be posted in the center.
10.7. The licensee shall maintain a daily record of actual foods served for each meal provided and this record shall be kept on file at the center for at least 30 days.
10.8. The licensee’s food service and facilities shall comply with Department of Health Legislative Rule, Food Establishments, W. Va. Code §§64-17-1, et seq.
10.9. If meals are provided by an outside contractor, the center shall have a written agreement with the contractor, the contractor must meet all requirements set forth in section 10 of this rule, and foods must be transported in acceptable containers and maintained at acceptable temperatures.
W. Va. Code R. § 71-20-11 Transportation
11.1. If the center provides transportation, all vehicles used for the transportation of participants shall be maintained in good operating condition in accordance with all applicable local, state and federal requirements.
11.2. There shall be sufficient staff present to ensure the safety of participants being transported by program vehicles.
W. Va. Code R. § 71-20-12 Fire Safety and Emergency Operations
12.1. Fire Safety.
12.1.1. The licensee shall provide evidence of compliance with applicable rules of the state fire commission. The state fire marshal’s and Director’s written approval are required for any variation from compliance with the fire code.
12.2. Emergency Operations.
12.2.1. The medical adult day care shall have a written emergency operations plan with procedures to be followed in any emergency that could severely affect the operation of the center.
12.2.2. The emergency operations plan shall have procedures with specific tasks and responsibilities for each class of employees in the event of missing participants, high winds, tornadoes, floods, bomb threats, utility failure, severe winter weather and other applicable plans based on risk assessment for the location of the center.
12.2.3. The emergency operations plan shall include at a minimum, the immediate action steps to ensure the safety and protection of participants, an emergency alternate shelter agreement, an emergency transportation policy, and notification of legal representative or next of kin.
12.2.4. The licensee shall maintain a copy of the emergency operations plan at a central location in the center, and staff shall know the location of the plan at all times.
12.2.5. The licensee or director shall review and update the emergency operations plan on an annual basis and shall sign and date the plan to verify the review.
12.2.6. The licensee shall conspicuously post emergency call information near each telephone in the center, with the telephone numbers of the fire department, the police, an ambulance service and other appropriate emergency services, and key staff telephone numbers.
12.2.7. The licensee shall rehearse the emergency operations plan with all staff annually and shall keep documentation of the rehearsal that includes verification of participation by each employee’s signature and a critique of the rehearsal by the licensee or director.
12.2.8. The licensee shall, on the first day of attendance, show all new participants how to evacuate the center in an emergency and shall document this in the participants’ records.
W. Va. Code R. § 71-20-13 Physical Facilities
13.1. Physical Facilities and Equipment.
13.1.1. The licensee of a medical adult day care center built, renovated or altered after the effective date of this rule shall maintain the center in accordance with the requirements of section 5 of this rule.
13.1.2. The licensee shall maintain the building, grounds and equipment in a clean, safe and sanitary condition at all times.
13.1.3. The licensee shall provide storage facilities that prevent contamination of food and supplies intended for human consumption.
13.1.4. The licensee shall store only those articles necessary for the operation and maintenance of the center on the premises.
13.1.5. The licensee shall establish and conduct a program of preventive maintenance for all equipment as recommended by the manufacturer.
13.1.6. The licensee shall keep the center free of insects, rodents and vermin.
13.1.7. Any method of extermination of insects, rodents and vermin used by the licensee in the center shall not create a fire or health hazard.
13.1.8. The center shall have a heating system capable of maintaining a temperature in all rooms used by participants of at least 72° Fahrenheit.
13.1.9. The center shall have cooling devices or a system so that inside temperatures do not exceed eighty degrees 80° Fahrenheit. Acceptable cooling devices include, but are not limited to, air conditioners, electric fans and heat pumps.
13.1.10. The staff call system shall be maintained operational at all times.
13.1.11. The Director may require the licensee to provide alarm systems for participant safety if a participant exhibits potentially harmful behaviors such as wandering from the center.
13.1.12. The center shall have space for the storage of linens, maintenance and housekeeping supplies, and equipment.
13.1.13. The center shall provide a storage area for individualized storage of participant clothing and personal belongings.
13.1.14. The center shall assure that oxygen being stored, handled or delivered for participant use complies with the safety requirements as specified by the National Fire Protection Association (NFPAA) 99.
13.1.15. The licensee shall ensure that every closet door latch can be readily opened from inside in case of emergency.
13.1.16. The licensee shall ensure that windows have curtains, shades, or blinds that may be opened and closed and are kept clean and in good repair.
13.2. Rest Area.
13.2.1. The rest area shall be equipped with at least one bed and one recliner.
13.2.2. At least three feet of space shall separate recliners or beds.
13.2.3. Each bed shall have a mattress with a moisture-proof surface, at least 36 inches wide that is substantially constructed, in good repair, comfortable, and able to accommodate the participants’ needs.
13.2.4. Each bed shall have a clean comfortable pillow, pillowcase, two sheets, and a bed spread or other type of covering.
13.2.5. The licensee shall ensure that there is a supply of sheets, pillowcases, bed coverings, and other linens necessary to provide a minimum of two changes per bed. Bed linens must be changed after every use.
13.3. Treatment /Examination Area.
13.3.1. The treatment/examination area must be equipped with a minimum of one bed or examination table and if there is more than one bed or examination table, there must be at least three feet of space between each.
13.3.2. The treatment/examination area handwashing facilities shall be supplied with liquid soap and a sanitary means of drying hands.
13.4. Toilets, Hand Washing and Bathing Facilities.
13.4.1. Toilet and bathing facilities shall contain the following:
13.4.1.a. Doors equipped with locking type hardware that swing outward and can be opened from outside in the event of an emergency;
13.4.1.b. Toilet rooms and handwashing facilities supplied with liquid soap, toilet tissue and a sanitary method for drying hands.
13.4.1.c. Bathing facilities shall be supplied with individual towels and washcloths for use by participants.
13.4.2. Bathtubs, showers and sinks shall not be used for storage of linens and clothing to be laundered or for laundering of soiled linens and clothing.
13.5. Dining Area and Leisure Area.
13.5.1. The leisure area shall have furniture that it sturdy and secure so that it cannot easily tip if used for support by participants while walking or sitting, that is scaled so that it is easily used by persons with limited agility and that is comfortable, clean, odor free and in good repair.
13.5.2. The dining area shall be equipped with sturdy tables and seating to accommodate each participant that is clean and in good repair.
13.6. Laundry.
13.6.1. If the center provides laundry services, the laundry room shall have separation between the soiled and clean laundry, mechanical ventilation in the soiled area, and a clean area large enough for folding linens.
13.6.2. Soiled laundry shall be stored in non-absorbent, easily cleanable covered containers or disposable plastic bags; table and kitchen linens shall be laundered separately from other washable goods; and sanitizing agents shall be used when laundering kitchen, bath, and bed linens.
13.6.3. Soiled and clean laundry shall not be stored together at any time. All laundry shall be dried mechanically in an electric or gas clothes dryer that is vented to the outside or by using a chemical sanitizing agent added to the rinse water and then air-dried.
13.6.4. The center shall have at least one housekeeping closet or room that contains a service sink for a sanitary means of disposal of wastewater in an area inaccessible to participants.
13.6.5. The licensee shall use locked storage facilities, separate from food and drugs, for laundry supplies, housekeeping supplies, insecticides, work supplies and any other toxic or hazardous material or equipment.
13.7. Water Supply and Sewage.
13.7.1. The center shall have hot and cold running water in sufficient supply to meet the needs of the participants and employees.
13.7.2. The licensee shall maintain hot water temperatures above 105° Fahrenheit and no higher than 115° Fahrenheit at all hot water sources, except for dishwashers and laundry facilities.
13.7.3. Hot water temperatures exceeding 120° Fahrenheit shall be considered an immediate and serious threat.
13.7.4. The licensee shall use a thermostatic mixing valve to control the temperature of hot water tanks exceeding 80-gallon capacity.
13.7.5. The center shall have a sewage system that is adequate to meet the participants’ needs, kept in good working order, and properly operated and maintained.
13.8. Pets and Other Animals.
13.8.1. Pets are permitted at medical adult day care centers, provided that all participants are advised prior to admission that pets are kept on the premises. If pets are added after the admission of participants, all participants shall agree to the addition of the pets.
13.8.2. Seeing eye and hearing ear dogs shall be permitted unless medically contraindicated.
13.8.3. Wild, dangerous or obviously ill animals are prohibited.
13.8.4. The licensee shall keep animals and the animal’s quarters in a clean condition at all times.
13.8.5. The licensee shall maintain proof that dogs and cats kept in the medical adult day care center or on the grounds are properly vaccinated. For dogs this includes rabies, leptospirosis, distemper and parvo, and for cats this includes rabies.
W. Va. Code R. § 71-20-14 Penalties, License Restrictions, and Revocations
14.1. The Director, in consultation with the Inspector General, may suspend or revoke a medical adult day care center license according to the provision of W. Va. Code §16B-5-6.
14.2. The Director, in consultation with the Inspector General, may refuse to grant a license or may revoke a license if he or she determines that there has been subterfuge or other dishonest action in applying for an initial or renewal license.
14.3. When the Director, in consultation with the Inspector General, takes action pursuant to the suspension or revocation of a license issued under this rule, he or she shall comply with the requirements and procedures specified by W. Va. Code §16B-3-6.
14.4. Anyone who violates the provisions of W. Va. Code §§16B-3-1, et seq. and this rule is subject to the penalties provided in W. Va. Code §16B-3-11.
W. Va. Code R. § 71-20-15 Administrative Due Process
15.1. Administrative due process and remedies for actions taken pursuant to this rule or W. Va. Code §§16B-3-1, et seq., are as provided by this rule, by applicable statutes, and in the Office of Inspector General Procedural Rule, Rules of Procedure for Contested Case Hearings and Declaratory Rulings, W. Va. Code R. §§64-1-1, et seq.
Series 21 Assisted Living Residences
W. Va. Code R. § 71-21-1 General
1.1. Scope. -- This legislative rule establishes specific standards and procedures to provide for the health, safety, and the protection of the rights and dignity of residents of assisted living residences. This rule should be read in conjunction with W. Va. Code §§16B-5-1, et seq. The West Virginia Code is available in public libraries and on the Legislature’s web page, http://wvlegislature.gov/.
1.2. Authority. -- W. Va. Code §16B-5-5.
1.3. Filing Date. – April 8, 2026.
1.4. Effective Date. -- May 1, 2026.
1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2031.
1.6. Application. -- This rule applies to any individual person and any organization, incorporated or unincorporated, including a partnership, corporation, trust, association or political subdivision of the State establishing, maintaining or operating an assisted living residence as defined in W. Va. Code §16B-5-2 and this rule. This rule does not apply to homes or asylums operated by fraternal orders pursuant to W. Va. Code §§35-3-1, et seq., or to healthcare facilities subject to other applicable licensure rules, such as nursing homes, residential care communities, and behavioral health centers.
1.7. Enforcement. -- This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of W. Va. Code §§16B-5-1, et seq., and the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-21-2 Definitions
2.1. Definitions incorporated by reference. -- Those terms defined in W. Va. Code §§16B-5-1, et seq., are incorporated herein by reference.
2.2. Abuse. -- The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods and services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain, or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology. Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.
2.3. Activities of Daily Living. -- The activities that an individual generally performs regularly in the course of maintaining his or her physical self, such as eating, dressing, oral hygiene, toileting, personal grooming, and moving themselves from one location to another.
2.4. Administration of Medication. -- Assisting a person in the ingestion, application or inhalation of medications, including both prescription drugs and non-prescription drugs.
2.5. Administrator. -- The owner or individual selected by the licensee to be responsible for the day-to-day operation of the assisted living residence.
2.6. Adult Day Care. -- Care and supervision for elderly or disabled adults during daytime hours only.
2.7. Bed Capacity. -- The number of residents an assisted living residence is licensed to house.
2.8. Classification of Standards. -- The designation assigned to the requirements in this rule indicating the level of impact the requirement has on the health, safety, and welfare of the residents. There are three levels used, indicated by Class I, Class II and Class III, with Class I having the most impact and Class III the least.
2.9. Communicable Disease. -- An illness caused by an infectious agent or its toxic product that is transmitted, directly or indirectly, to a susceptible host from an infected person or animal, or through the agency of an intermediate host or a vendor or through the inanimate environment.
2.10. Developmental Disorder. -- A group of disorders in which the predominant disturbance is in the acquisition of cognitive, language, motor, or social skills. The disturbance may involve a general delay, as in mental retardation, or a delay or failure to progress in a specific area of skill acquisition or multiple areas in which there are qualitative distortions of normal development.
2.11. Direct Care Staff. -- Individuals who assist or actually perform activities for residents such as eating, dressing, oral hygiene, toileting, personal grooming, repositioning, ambulating residents from one location to another, or provide care to residents who have one or more inappropriate behaviors that reasonably requires additional staff to control.
2.12. Disability. -- Any limitation of physical, mental, or social activity of an individual as compared with other individuals of similar age, sex, and occupation. It frequently refers to limitation of the usual or major activities, most commonly vocational.
2.13. Exploitation. -- The act or process of taking unjust advantage of another individual for one’s own benefit that includes, but is not limited to, the deliberate misplacement or wrongful use of a resident or the resident’s belongings or money without the resident’s consent.
2.14. Extensive Nursing Care. -- The nursing care required when there is a major deviation from normal in a body system or multiple body systems of such magnitude that the deviations are life threatening and the individual’s condition is unstable and unpredictable.
2.15. Functional Needs Assessment. -- Any measurement tool that identifies for the resident and the licensee those services that the licensee will need to obtain or provide for the resident in order to promote the resident’s health, comfort, dignity, and independence.
2.16. Health Care Facility. -- A public or privately-owned institution, entity or adult residential facility or any part or unit thereof, that offers or provides health care services, such as personal assistance, supervision, nursing care, or behavioral health care, that are required to be licensed in accordance with state law to provide the services.
2.17. Immediate and Serious Threat. -- A situation that presents a high probability of serious harm or injury to one or more residents. An immediate or serious threat need not result in actual harm to any resident.
2.18. Imminent Danger. -- A situation that could reasonably be expected to immediately cause or contribute to death, serious physical harm, or illness to a resident, household member, or staff before the situation can be eliminated through a plan of correction according to section 3.10. of this rule.
2.19. Legal Representative. -- A person chosen by the resident or appointed by an individual or by a duly authorized agency or court, or otherwise authorized by law to exercise some degree of control over a resident’s affairs. Legal representatives may have limited authority to act on behalf of the resident. For example, a conservator has responsibility for financial affairs, but not personal affairs such as medical care. Legal representatives include:
2.19.1. A conservator, temporary conservator or limited conservator appointed pursuant to the West Virginia Legal Guardianship and Conservatorship Act, W. Va. Code §§44A-1-1, et seq., within the limits set by the most recent court order;
2.19.2. A guardian, temporary guardian or limited guardian appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code §§44A-1-1, et seq., within the limits set by the most recent court order;
2.19.3. An individual appointed as committee or guardian prior to June 9, 1994, within the limits set by the appointing order and W. Va. Code §§44A-1-1, et seq.;
2.19.4. An individual having a medical power of attorney pursuant to the West Virginia Health Care Decisions Act, W. Va. Code §§16-30-1, et seq., within the limits set by law and the appointment;
2.19.5. A representative payee under the U.S. Social Security Act, Title 42 U.S. Code §§ 301, et seq., within the limits of the payee’s legal authority;
2.19.6. A health care surrogate decision-maker appointed pursuant to the West Virginia Health Care Decisions Act, W. Va. Code §§16-30-1, et seq., within the limits set by the appointment;
2.19.7. An individual having a durable power of attorney pursuant to W. Va. Code §§39B-1-101, et seq., or a power of attorney under common law, within the limits of the appointment;
2.19.8. An individual identified pursuant to W. Va. Code §16-3C-4, to grant consent for HIV-related testing and for the authorization of the release of test results;
2.19.9. A parent or guardian of a minor; or
2.19.10. An individual lawfully appointed in a similar or like relationship of responsibility for a resident under the laws of this state, or another legal jurisdiction, within the limits of the applicable law and appointing authority.
2.20. Licensed Health Care Professional. -- A health care professional currently licensed in West Virginia including, but not limited to, a social worker, dentist, practical nurse, occupational therapist, pharmacist, physical therapist, physician, physician assistant, psychologist, registered professional nurse, or speech-language pathologist.
2.21. Life Care Contract. -- A financial agreement between the licensee and an individual in which the licensee agrees to provide specified care to the individual for the rest of the individual’s life.
2.22. Limited and Intermittent. -- No more than two hours of nursing care per day for a period of time no longer than 90 consecutive days per episode.
2.23. Major Incident. -- An event or occurrence, the outcome of which places one or more resident’s health and well-being in imminent danger, such as:
2.23.1. A serious injury resulting from a fall, accident, or other event;
2.23.2. A resident’s death occurring from other than natural causes;
2.23.3. A missing resident who is likely to injure himself or herself, or who needs medication or treatment on a regular basis, and who is likely to have difficulty returning to the assisted living residence on his or her own;
2.23.4. Assault on a resident resulting in injury; and
2.23.5. Other suspected criminal activity or events that cause the disruption of normal assisted living residence activity, including threats or occurrences of extreme violence, explosions, fire, or natural disasters.
2.24. Mental Abuse. -- Includes, but is not limited to, subjecting or exposing a resident to behavior that may result in psychological trauma or injury, including, but not limited to, humiliating, harassing, teasing, or threatening; unreasonably restricting a resident’s contact with family, friends, or other residents; unreasonably ignoring a resident’s requests; threats of punishment or deprivation; or willfully violating a resident’s rights, including confidentiality.
2.25. Mental Disorder. -- An illness that affects the psychological well-being or behavior of an individual to the extent that the individual requires treatment for his or her own welfare or the welfare of others.
2.26. Neglect. -- Failure of the facility, its employees, or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.
2.27. Ombudsman. -- Any person or organization designated by the State Long-Term Care Ombudsman as part of the West Virginia Long-Term Care Ombudsman Program.
2.28. Ongoing Nursing Care. -- Nursing care that continues in excess of 90 consecutive days.
2.29. Residence. -- An assisted living residence as defined in W. Va. Code §16B-5-2.
2.30. Restraint.
2.30.1. Any manual method or physical or mechanical device, material, or equipment attached or adjacent to the resident’s body that the resident cannot remove at will and that physically limits, restricts, or deprives the resident of movement or mobility; or
2.30.2. Any drug used to limit movement or mental capacity of a resident for non-medical reasons beyond the requirements of therapeutic treatment.
2.31. Self-Administration of Medications. -- The act of a resident, who is independently capable of reading and understanding the labels of prescribed medication, in opening and accessing a prepackaged container of medication, and accurately identifying and taking the correct dosage of the medication, at the correct time and under the correct circumstances as prescribed by the physician.
2.32. Service Plan. -- A written description of the services that need to be provided to a resident to meet all of the needs identified in his or her functional needs assessment.
2.33. Sexual Abuse. -- Includes, but is not limited to, sexual harassment, sexual coercion, sexual exploitation, sexual assault, or sexual contact. It also includes taking or disseminating photographs, films, audio, or other recordings of a resident, without informed consent, when such items serve no health, well-being, safety, or medical purpose, and would serve to demean or humiliate the resident, including but not limited to, items that contain nudity, sexual and intimate relations, bathing, showering, toileting, or otherwise showing the resident in a compromising position, or agitating the resident to elicit a response, regardless of whether the resident has capacity.
2.34. Significant Change. -- A change in a resident’s condition that is major, impacts on more than one area of the resident’s health status, and requires intervention by a health care professional.
2.35. Supervision. -- The assumption of varying degrees of responsibility for the safety and well-being of residents including, but not limited to:
2.35.1. Being aware of the resident’s whereabouts, to the extent identified as a need by the resident’s assessment or service plan;
2.35.2. Monitoring the activities of a resident while on the premises of the residence to ensure the resident’s health, safety, and well-being;
2.35.3. Reminding the resident of any important activities of daily living;
2.35.4. Overseeing the administration of medication, if not administering it;
2.35.5. Purchasing of food and other supplies, and meeting nutritional and food needs; and
2.35.6. Arranging for or providing transportation as necessary.
2.36. Verbal Abuse. -- Includes, but is not limited to, the use of oral, written, or gestured language that willfully includes disparaging and derogatory terms to residents or their families, or within their hearing distance, regardless of their age, ability to comprehend, or disability. Examples of verbal abuse include, but are not limited to, threats of harm; saying things to frighten a resident, such as telling a resident that he or she will never be able to see his or her family again; intimidation; humiliation; threats of hostility; or vulgarity.
2.37. Serious Injury. -- Means to cause an injury requiring medical attention beyond routine first aid, including fractures, lacerations requiring closure, burns, or any condition resulting in limited mobility or functional restriction.
2.38. Videoconferencing. -- Real-time, two-way audiovisual communication between the resident and one or more individuals through technology designed for interactive conversations, such as computers, tablets, or smartphones equipped with approved software or applications. Videoconferencing does not include security cameras, monitoring devices, doorbell cameras, surveillance systems, hidden cameras, live-stream or continuously operating video feeds, recording devices, or any other equipment used for observation rather than interactive communication.
W. Va. Code R. § 71-21-3 State Administrative Procedures
3.1. General Licensing Provisions.
3.1.1. No person, partnership, association, or corporation may operate an assisted living residence in the state of West Virginia without first obtaining a license pursuant to W. Va. Code §16B-5-6 and this rule.
3.1.2. A license is valid only for the person and for the location named in the application and on the license and is not transferable.
3.1.2.a. The assisted living residence shall notify the Director in writing 30 days prior to a change in name or physical address of the program and request an application for a licensure amendment.
3.1.2.b. If the ownership of an assisted living residence changes, the new owner shall notify the Director within 10 days and immediately apply for a new license. The new owner’s application for a license is valid for three months from the date the application is received by the Director.
3.1.3. Each assisted living residence location shall be licensed separately, regardless of whether the assisted living residence is operated under the same business name or management as another assisted living residence.
3.1.4. The words “clinic,” “hospital,” “nursing home,” “residential care community” or any other words that suggest a type of facility other than an assisted living residence shall not be used in the name or the advertising of the residence.
3.1.5. The licensee is responsible for compliance with this rule, W. Va. Code §§16B-5-1, et seq., and other relevant federal and state laws.
3.1.6. The Director may issue an initial or renewal license for a period not to exceed one year, except if an applicant submits an application for renewal of a license currently in effect in accordance with this rule and W. Va. Code §§16B-5-1, et seq., together with the required fee described in W. Va. Code §16B-5-6(i). The Office of Health Facility Licensure and Certification shall post the annual consumer price index increases on its website located at: https://oig.wv.gov/OHFLAC. The license shall continue in effect until:
3.1.6.a. One year following the expiration date of the license;
3.1.6.b. The date of a revocation or suspension of the license pursuant to this rule and W. Va. Code §§16B-5-1, et seq., or
3.1.6.c. The date of issuance of a new license, whichever date occurs first.
3.2. Initial Licensure Application.
3.2.1. An applicant for initial licensure shall submit a completed application to the Office of Health Facility Licensure and Certification, along with a non-refundable fee, and any additional information the Director may require.
3.2.2. The applicant shall have his or her signature on the application and have accompanying forms notarized. The signature shall serve as a release for obtaining references, credit, and other background information.
3.2.3. The applicant shall pay the cost of the initial licensure inspections, pursuant to W. Va. Code §16B-5-6(i) before the issuance of an initial license.
3.2.4. The applicant shall provide to the Director a preliminary operating plan that includes a proposed budget with projected monthly income, a balance sheet showing all expenses and income on forms provided by the Director, including but not limited to, reimbursement of the owners, lease payment, and monthly rates charged.
3.2.5. The applicant shall submit the application and fee at least 90 days prior to the date proposed for the commencement of operations.
3.2.6. Except as specified in section 3.5. of this rule, and after a satisfactory inspection to ensure compliance with this rule, the Director shall issue an initial license.
3.3. License Renewal.
3.3.1. The licensee shall submit an application for renewal of a license to the Director at least 90 days before the expiration date of the current license.
3.3.2. Except as specified in section 3.4. of this rule, the Director shall issue a renewal license to an assisted living residence when the following conditions are met:
3.3.2.a. The residence is found to be in substantial compliance with this rule;
3.3.2.b. The applicant has submitted a completed application and all requested financial information; and
3.3.2.c. The residence has met all Class I standards of this rule.
3.4. Non-Issuance of Initial or Renewal License.
3.4.1. The Director, in consultation with the Inspector General, may refuse to issue or may revoke either an initial or a renewal license if he or she finds evidence of the following:
3.4.1.a. The applicant or licensee has a lack of financial stability to operate, such as insufficient capital, delinquent accounts, checks returned because of insufficient funds, and nonpayment of taxes, utility expenses, and other essential services;
3.4.1.b. The applicant or licensee has a personal history that has:
3.4.1.b.1. Evidence of abuse, fraud, or substantial and repeated violations of applicable laws and rules in the operation of any health care facility or service organization, or in the care of dependent persons; or
3.4.1.b.2. An ineligible employment fitness determination from the West Virginia Clearance for Access: Registry and Employment Screening unit of the Office of Inspector General and not received a variance;
3.4.1.c. The applicant or licensee has been denied a license or has had a license to operate a health care facility revoked in West Virginia or any other jurisdiction during the previous five years;
3.4.1.d. The applicant or licensee has a record of noncompliance with lawful orders of the Director or other licensing or certification agency for any jurisdiction in which the applicant has operated, directed, or participated in the operation of a health care facility;
3.4.1.e. The applicant, licensee, or person in charge of the residence has refused the Director entry and access to residents and records for an inspection or survey;
3.4.1.f. The applicant or licensee has converted the property of a resident for his or her own use, or has secured property or a bequest of property, from a resident by undue influence;
3.4.1.g. The applicant, licensee, or administrator has submitted false information to the Director during the licensure process or during the course of an inspection or survey of the residence;
3.4.1.h. The applicant or licensee has moved residents of the assisted living residence to another location owned or operated by the applicant or licensee without prior approval of the location by the Director;
3.4.1.i. The applicant or licensee has built or renovated a residence without complying with the requirements of section 3.12. of this rule;
3.4.1.j. The applicant or licensee has failed to correct a violation of any Class I standard, or has failed to be in substantial compliance with the requirements of this rule; or
3.4.1.k. The residence has failed to receive a recommendation for licensure from the state fire marshal.
3.4.2. Before refusing to issue an initial or renewal license or revoking a license, the Director, in consultation with the Inspector General, shall consider all available evidence at the time of the determination, including:
3.4.2.a. The history of the residence and the applicant or licensee in complying with this rule; and
3.4.2.b. Notices of violations that have been issued to the residence and the applicant or licensee, findings of surveys and inspections, and any evidence provided by the applicant or licensee, residents, law enforcement officials, and other interested individuals.
3.5. Provisional License.
3.5.1. The Director may issue a provisional license when:
3.5.1.a. The licensee has failed to meet all the requirements of W. Va. Code §§16B-5-1, et seq., but care given in the residence is adequate for the residents’ needs and the licensee has demonstrated improvement and evidences potential for substantial compliance during the term of the provisional license; or
3.5.1.b. All requirements for renewal of a license are not met prior to the expiration of the previously issued license.
3.5.2. When the Director issues a provisional license, he or she shall determine the period of time for which the license is valid, but the period shall not exceed one year.
3.5.3. The Director shall not renew a provisional license.
3.5.4. If the Director denies a provisional license or a provisional license expires, the applicant for a license shall meet the requirements for an initial license, including the cost of an initial application fee and inspections as determined by the Director.
3.5.5. The Director shall not issue a provisional license when the residence is in violation of any Class I standard or has a record of noncompliance with this rule.
3.6. Inspections.
3.6.1. The Director shall inspect an assisted living residence as necessary to carry out the intent of W. Va. Code §§16B-5-1, et seq., and this rule.
3.6.2. The Director shall conduct at least one inspection of a residence prior to issuing an initial license, but shall not conduct an inspection until after the following conditions are met:
3.6.2.a. The application and application fee have been received and the application has been determined to be complete; and
3.6.2.b. All requested documentation has verified the readiness of the residence for an inspection.
3.6.3. The Director shall conduct periodic unannounced inspections to determine the residence’s continued compliance with this rule.
3.6.4. The Director has the right to enter a home or structure that is believed to be operating or maintained as an assisted living residence without a license, to conduct inspections without prior notice. If the operator or person in charge of the suspected assisted living residence or licensed assisted living residence refuses entry, the Director may apply to the circuit court in which the suspected residence is located or the circuit court of Kanawha County for a warrant to authorize an inspection or to compel attendance to the premises of the suspected residence.
3.7. Complaint Investigation.
3.7.1. Any person may register a complaint with the Director alleging a violation of this rule by an assisted living residence or an individual alleged to be unlawfully operating an assisted living residence, by stating the complaint and identifying the name and address of the residence.
3.7.2. The Director may conduct investigations as necessary to determine the validity of the complaint and shall notify the licensee of the residence or the individual alleged to be operating an illegal assisted living residence of the complaint at the time of the completion of the investigation.
3.7.3. The Director shall notify the licensee or the operator of an unlicensed residence of any corrective action required, the time frame for completion of the corrective action, and any disciplinary action to be taken by the Director, in consultation with the Inspector General.
3.7.4. Except as provided in subsection 3.7.5. of this rule, the Director shall keep the names of a complainant and of any resident named in the complaint confidential and shall not disclose the names to the public without written or verbal permission of the complainant and the resident, and his or her legal representative, if any, unless there is an immediate risk to the resident. The Director shall delete the name of a complainant or resident named in a complaint or information contained in the report of an investigation that could reasonably identify the complainant or any resident. Information contained in any report of abuse, neglect, or an emergency situation made in accordance with W. Va. Code §9-6-8 shall be confidential and shall not be released except as provided in that article.
3.7.5. If a complaint becomes the subject of a judicial proceeding, nothing in this rule is construed to prohibit the disclosure of information that would otherwise be disclosed in judicial proceedings.
3.7.6. Any type of discriminatory treatment of a resident or employee by whom or on whose behalf a complaint has been submitted to the Director, within 120 days of the filing of the complaint or the institution of the action, raises a rebuttal presumption that the discriminatory treatment action was taken by the licensee in retaliation for the complaint or action.
3.8. Waivers.
3.8.1. The Director, in consultation with the Inspector General, may waive a requirement of this rule if after thorough investigation, he or she determines that the waiver will not adversely affect the health, safety, welfare, or rights of the residents.
3.8.2. The licensee shall submit a written request for a waiver and the request shall:
3.8.2.a. Specify the specific requirement in this rule for which the waiver is requested;
3.8.2.b. Specify the time period for which the waiver is requested;
3.8.2.c. Include specific and detailed reasons for the request;
3.8.2.d. Explain why the specific requirement cannot be complied with; and
3.8.2.e. Document that there will be no adverse effect on the residents’ health, safety, welfare, or rights if the waiver is granted.
3.9. Reports and Records.
3.9.1. The Director shall prepare a written report of any inspection made pursuant to this rule within 15 days of the completion of the inspection and shall mail or electronically transmit to the licensee or administrator, as applicable, a statement of deficiencies that contains the violations of this rule.
3.9.2. The names of residents shall be kept confidential and shall not be disclosed without the resident’s written permission or by order of court of record. Nothing contained in this rule shall be construed to require or permit the public disclosure of confidential medical, social, personal, or financial records of any resident. Before releasing a report or record judged public information, the Director shall delete any information regarding a resident that would reasonably permit identification of the resident.
3.9.3. The Director shall provide notification to the social security administration if a residence demonstrates continued noncompliance with this rule.
3.10. Plans of Correction.
3.10.1. The licensee of an assisted living residence, found on the basis of inspection or other investigation to have violations of requirements in this rule, shall develop, sign, and date a plan of correction, and submit it to the Director within 15 working days of receipt of the statement of deficiencies.
3.10.2. The Director shall require immediate correction of violations identified as constituting immediate and serious threats to the health or safety of a resident or employee.
3.10.3. For deficiencies other than those constituting immediate and serious threats, the licensee is expected to comply with the rule within 60 days of the inspection, unless the Director waives this requirement and allows more time to correct certain types of deficiencies.
3.10.4. The plan of correction shall specify:
3.10.4.a. The violations to be corrected;
3.10.4.b. The actions taken or proposed to correct the violations and procedures to prevent their recurrence; and
3.10.4.c. The dates on which each violation is corrected or by which each will be corrected, that allows the shortest possible time to reasonably correct each specific violation.
3.10.5. The Director shall notify the licensee in writing of his or her approval, suggested modifications, or rejection of the plan of correction, or any part thereof.
3.10.6. If modifying or rejecting the proposed plan of correction, the Director shall state the reasons for the modification or rejection.
3.10.7. If the Director rejects the plan of correction, the licensee has up to 15 working days from the receipt of the Director’s determination to submit a revised plan.
3.10.8. The Director may conduct a follow-up, on-site inspection to verify the correction of any violations identified during an inspection or any other investigation.
3.11. Classification of Standards. In accordance with W. Va. Code §16B-5-5(c), the classification for each standard indicates the most serious classification that may be assigned to that standard.
3.12. New Construction, Additions, Renovations, and Alterations.
3.12.1. The requirements of this section apply in total to all proposed assisted living residences. Existing residences proposing additions and renovations shall meet only the requirements determined applicable by the Director to the new or renovated portion.
3.12.2. For new construction, additions, renovations, or alterations to existing residences, and before construction begins on a proposed residence, the applicant shall submit a complete set of drawings and specifications for the architectural, structural, and mechanical work as follows:
3.12.2.a. For a large, assisted living residence, an architect or engineer registered in West Virginia shall prepare, sign, and seal the submitted set of construction drawings and specifications and submit one set of these documents to the Director and the state fire marshal for approval. The registered architect or engineer shall also inspect the new residence, or the additions and renovations, during the construction phase.
3.12.2.b. For a small, assisted living residence, the applicant shall submit a set of drawings and specifications that are drawn to scale and fully dimensioned, to the Director and state fire marshal for approval.
3.12.2.c. Unless substantial construction is started within one year of the date of approval of final drawings, the architect, engineer, or applicant, whichever applicable, shall obtain written permission from the Director that the plan approval for construction is still valid and in compliance with this rule.
3.12.3. The Director shall inspect sites for all proposed residences and sites of additions or renovations to existing residences, prior to the applicant initiating construction. Sites shall:
3.12.3.a. Have adequate drainage to divert surface water and be located in an area above the 100-year flood plain;
3.12.3.b. Have a water supply that is safe and sized to meet all residential needs and requirements of the sprinkler system and has as its source of water either:
3.12.3.b.1. A public water system that complies with the Department of Health Legislative Rule, Public Water Systems, W. Va. Code R. §§64-3-1, et seq.; or
3.12.3.b.2. A water well that complies with the Department of Health Legislative Rules, Water Well Regulations, W. Va. Code R. §§64-19-1, et seq., and Water Well Design Standards, W. Va. Code R. §§64-46-1, et seq.; and
3.12.3.c. Have precautions to assure the residents’ safety, if located near railroads, freight yards, traffic arteries, or airports.
3.12.4. A qualified soils engineer shall review any questionable soil conditions, high walls, or surface water runoff, and if conditions require, perform earth core borings and laboratory tests. If engineered soil is installed or other soil tests are conducted, the applicant shall provide the Director with copies of the soil test reports.
3.12.5. The Director shall inspect and approve all construction, new additions, renovations, or alterations prior to the admission of new or additional residents. When construction is substantially complete, the applicant shall submit a substantial completion form signed by all the parties involved and a completed inspection request form to the Director.
3.12.6. An assisted living residence shall pay a $400 fee plus the actual costs of the initial inspections made by the Director prior to issuing a license. The cost shall be billed to the assisted living residence or owner or owners by the Director after the inspections and must be paid in full before a license is issued.
3.12.7. The applicant shall submit plans for the addition, removal, or modification of equipment that is permanently affixed to the building or that may otherwise involve or necessitate new construction, alterations, or additions to the residence to the Director for approval.
3.12.8. Other changes involving equipment that may or may not require physical changes in the residence, but that may relate to other standards and requirements of this rule may require the Director’s approval. The applicant shall request approval in advance from the Director regarding a specific change or rearrangement. Areas in which changes are likely to require approval include, but are not limited to, the kitchen, the laundry, and the heating equipment.
3.12.9. The applicant shall submit the plan of operation to the Director for approval, and the Director shall determine the licensed bed capacity. For an increase in the licensed bed capacity, the licensee shall obtain prior written approval of the Director.
3.12.10. The residence shall comply with the state fire commission, the International Building Code, 2003 Ed.
3.12.11. The residence shall comply with the Fire Commission Legislative Rule, Fire Code, W. Va. Code R. §§87-1-1, et seq.
3.12.12. The residence shall comply with the Americans with Disabilities Act (ADA) and the American National Standards Institute (ANSI) codes.
3.12.13. The residence shall comply with local building or zoning codes if they require standards higher than those required by this rule.
3.12.14. The applicant shall have evidence of compliance signed by local fire, building, and zoning officials available onsite for review.
3.12.15. The residence shall have an all-weather, hard surface road that connects directly to a highway.
3.12.16. The residence shall have parking areas with:
3.12.16.a. Clean, solid, earth beds; a compacted stone base; and a hard surface, all-weather finish coat; free of broken, gaped, or uneven paving, with slopes that permit good drainage; and
3.12.16.b. Adequate spaces for all staff on duty and a minimum of one parking space for each five beds.
3.12.17. The residence shall have hard, slip-resistant surface concrete walks at all exits that connect to the main walk or parking area, that are a minimum of 36 inches wide.
3.12.18. The applicant shall ensure that low windows, open porches, changes in floor level, and similar potential hazards are designed so that the danger of accidents is minimized, and that dangerous areas on the site are safeguarded.
3.12.19. The applicant shall store oxygen outdoors in an enclosure protected from the weather or in a well-ventilated oxygen storage room of approved construction, with doors locked to prevent unauthorized entry.
3.12.20. The residence shall have a call system that is audible to staff who are on duty and that can be accessed from each bed and other areas as necessary for the safety of residents. Electronic call systems may be required based on the size of the residence, the staffing patterns, and the configuration of the building.
3.12.21. Bedrooms shall:
3.12.21.a. Have at least 100 square feet of floor area per resident in single occupancy rooms, and 90 square feet of floor area per resident in double occupancy rooms;
3.12.21.b. Have an outside exposure through a vertical transparent window;
3.12.21.c. Not extend below ground level unless granted written approval by the Director; and
3.12.21.d. Not be occupied by more than two persons.
3.12.22. The residence’s toilet and bathing facilities shall provide the following:
3.12.22.a. A minimum of two bathrooms, each containing a flushing toilet and hand washing sink, with a mirror over the sink, at a ratio of no less than one toilet and lavatory for every six residents;
3.12.22.b. A minimum of one bathing facility per floor, with a bath tub or shower, equipped with non-slip surfaces, a flushing toilet, and a hand washing sink, at a ratio of no less than one bathing facility for every 10 residents;
3.12.22.c. Grab-bars at toilets, tubs, and showers that are securely mounted to the finished wall with a steel plate or a two inch by six-inch wood plate backing behind the wall. Grab bar brackets shall be spaced to support 250 pounds of a concentrated load at any point on the grab bar; and
3.12.22.d. Bathroom doors with locking type hardware that swing outward and can be opened from outside in the event of an emergency.
3.12.23. The residence shall have a dining area of at least 15 square feet per resident and an area of at least 15 square feet per resident for leisure space. The dining room may serve as part of the leisure room, and if combined, a dining and leisure room area shall have a minimum of 30 square feet per resident.
3.12.24. If the residence provides laundry services, the laundry room shall have separation between the soiled and clean laundry, mechanical ventilation in the soiled area, a clean area large enough for folding linens, and venting to the outside for any electric or gas dryer.
3.12.25. The residence shall have at least one service sink per floor for a sanitary means of disposal of waste water in an area inaccessible to residents.
3.12.26. The residence shall have sewage disposal in accordance with Department of Health Legislative Rules, Sewer Systems, Sewage Treatment Systems, and Sewage Tank Cleaners, W. Va. Code R. §§64-9-1, et seq., and Sewage Treatment and Collection System Design Standards, W. Va. Code R.§§64-47-1, et seq.
W. Va. Code R. § 71-21-4 Administrative Requirements
4.1. General Administrative Requirements.
4.1.1. The licensee shall develop and adopt written policies and procedures that are consistent with this rule and specific to the assisted living residence, governing the care and safety of residents, and all other policies and procedures required by this rule. The licensee shall sign and date the policies and procedures at the time of adoption and of any changes. (Class III)
4.1.2. The licensee shall have a copy of the policies and procedures available for review on request by employees, residents, and the general public. (Class III)
4.1.3. The licensee shall have a resident bill of rights, and house rules governing resident behavior and responsibilities, that are both in writing and consistent with this rule. (Class III)
4.1.4. Unless otherwise approved in writing by the Director, a licensee shall not rent, lease, or use any part of the residence for any purpose other than the operation of housing residents. (Class III)
4.1.5. A licensee that intends to provide adult day care shall obtain prior approval from the Director by notifying the Director of the number of individuals the residence proposes to serve in addition to the residence’s licensed bed capacity. Individuals to be served shall have the same health screening as required for the residents and shall not have extensive or ongoing nursing care needs. The Director’s determination shall be based on space requirements, services proposed to be provided, staffing, and the residence’s history of compliance with this rule. (Class III)
4.1.6. Any individual, including an employee, or his or her spouse, having a financial interest in the residence shall not serve as a resident’s legal representative, with the exception of a representative payee under the United States Social Security Act, unless he or she is related to the resident within the consanguinity of second cousin. (Class III)
4.1.7. All employees of an assisted living residence shall be subject to the provisions of the West Virginia Clearance for Access: Registry and Employment Screening Act, W. Va. Code §§16B-15-1, et seq. and W. Va. Code R. §§71-11-1, et seq. (Class II)
4.2. The Licensee.
4.2.1. The licensee shall comply with this rule; the terms of the assisted living residence’s license; W. Va. Code §§16B-5-1, et seq.; other applicable federal, state, or local laws; and with the residence’s policies. (Class II)
4.2.2. The licensee shall protect the physical and mental well-being of residents. (Class I)
4.2.3. The licensee shall maintain accurate records and reports required by this rule. (Class II)
4.2.4. The licensee shall administer the residence on a sound financial basis consistent with good business practices and shall maintain fiscal records that accurately identify, summarize, and classify funds received and disbursed for the operation of the residence. The issuance of bad checks or accumulation of delinquent bills constitute evidence that the licensee lacks satisfactory proof of financial ability to operate the residence in accordance with the requirements of W. Va. Code §16B-5-6. (Class II)
4.2.5. The licensee shall notify the Director in writing within 10 days of any permanent change in the administrator and in the consulting or supervising registered professional nurse of the residence. A licensee shall not operate a residence more than 30 days without a qualified administrator or supervising registered professional nurse, unless the Director grants an extension, based on a determination that a reasonable attempt has been made to find a suitable replacement. (Class III)
4.2.6. The licensee shall report major incidents, as defined in section 2.23. of this rule, to the Office of Health Facility Licensure and Certification as soon as possible, and no later than the next business day. (Class III)
4.3. Administrator.
4.3.1. A large residence shall have an administrator who is at least 21 years of age and has an associate degree or its equivalent in a related field, except an individual who was approved as an administrator prior to August 15, 1996, who shall have at least a high school education or its equivalent approved by the State Department of Education. A small residence shall have an administrator who is at least 21 years of age and has completed high school or a general education development (GED) certificate. (Class III)
4.3.2. The assisted living residence shall have an administrator who has received an eligibility fitness determination or variance from the West Virginia Clearance for Access: Registry and Employment Screening unit of the Office of Inspector General. (Class II)
4.3.3. The administrator shall participate in eight hours of training related to the operation of a residence annually and a record of this training shall be available for review. (Class III)
4.3.4. The administrator shall know the requirements of this rule, develop and execute all policies and procedures required by this rule, ensure compliance with all applicable laws, and ensure the adequacy and appropriateness of services delivered to the residents. (Class II)
4.3.5. The administrator or a responsible employee, designated in writing, shall be present and in charge of the residence at all times. (Class II)
4.4. Staffing Requirements.
4.4.1. Each assisted living residence shall have a minimum of one direct care staff person 24 hours per day, who can read and write, and shall have a sufficient number of qualified employees on duty to provide the residents with all of the care and services they require. (Class I)
4.4.1.a. Day shift – In addition to the one direct care staff person on the day shift, the residence shall have one direct care staff on the day shift for each 10 residents identified on their needs assessments to have two or more of the following care needs: dependence on staff for eating, toileting, ambulating residents from one location to another, bathing, dressing, repositioning, oral hygiene, personal grooming, or one or more inappropriate behaviors that reasonably require additional staff to control, such as sexually acting out, stripping in public settings, refusing basic care, destroying property, or injurious behavior to self or others (hereinafter referred to as “special care needs”);
4.4.1.b. Evening shift – In addition to the one direct care person on the evening shift, the residence shall have at least one additional direct care staff on the evening shift for each 15 residents identified on their functional needs assessments to have two or more special care needs;
4.4.1.c. Night shift – In addition to the one direct care person on the night shift, the residence shall have at least one additional direct care staff on the night shift for each 18 residents identified on their functional needs assessments to have two or more special care needs.
4.4.2. One employee who has current first aid training and current cardiopulmonary resuscitation (CPR) training, as applicable, shall be on duty at all times. A record of this training shall be available for review. (Class I)
4.4.3. A multi-story residence shall have at least one awake staff per story while residents are sleeping, unless the residents are certified by a physician or psychologist as not in need of sleep time supervision, and the residence has an emergency call system from the residents to the awake staff person. (Class I)
4.4.4. The residence shall have sufficient staff to meet the laundry, food service, housekeeping, and maintenance requirements of this rule. (Class II)
4.4.5. The licensee shall maintain staffing records that accurately reflect the actual employees on duty in the residence at any given time, including the hours they have worked and the positions they worked, and provide them to the Director upon request. (Class III)
4.4.6. If a resident experiences a poor outcome related to a lack of supervision or unmet care needs, the Director may require the licensee to add staff. (Class I)
4.5. Employee Orientation and Training.
4.5.1. The licensee shall provide and maintain a record of training to new employees prior to scheduling them to work unsupervised, and no later than within the first 15 days of employment, in accordance with a written plan that includes, at a minimum, emergency procedures and disaster plans; the residence’s policies and procedures; resident rights; confidentiality; abuse prevention and reporting requirements; the ombudsmen’s role; complaint procedures; specialty care based on individualized resident needs and service plans; the provision of group and individual resident activities; and infection control. (Class II)
4.5.2. The licensee shall provide and maintain a record of in-service training annually to all staff on the topics of resident rights, confidentiality, abuse prevention and reporting requirements, the provision of resident activities, infection control, fire safety and evacuation plans, and specialty care based on individual resident needs and service plans. (Class II)
4.5.3. The licensee shall provide training to all new employees within 15 days of employment and annually thereafter on Alzheimer’s disease and related dementias. The licensee shall maintain an employee training record. The training shall be a minimum of two hours in duration and shall include all the following: basic understanding of Alzheimer’s disease and other dementias; communication approaches and techniques for use when interacting with persons with Alzheimer’s disease or a related dementia; prevention and management of problem behaviors; and activities and programming appropriate for these individuals. (Class II)
4.6. Personnel Records.
4.6.1. The licensee shall maintain a confidential personnel record for each employee, including the administrator, and for uncompensated direct access personnel as defined in W. Va. Code §16B-15-1, et seq., who provide personal assistance to more than one resident. Each record shall contain at least the following:
4.6.1.a. The employee’s date of employment, current home address and telephone number, social security number, and proof of compliance with age requirements of applicable federal and state laws;
4.6.1.b. Evidence that each assisted living residence employee, independent contractor, or uncompensated direct access personnel as defined in W. Va. Code §16B-15-1, et seq., has received an eligibility fitness determination or variance from the West Virginia Clearance for Access: Registry and Employment Screening unit of the Office of Inspector General, if applicable;
4.6.1.c. A position title and proof of any required education or license; and
4.6.1.d. A health record containing the results of a pre-employment and annual screening for tuberculosis and other communicable diseases as indicated by exposure, prevalence, or currently accepted medical practice in congregate living situations as indicated by the Director. (Class III)
4.6.2. The licensee shall maintain personnel records on file at the residence for at least three years following the termination of an employee and shall document the date and reason for the termination. (Class III)
4.7. Administrative Admission and Discharge.
4.7.1. The licensee shall not discriminate against residents or a prospective resident on the basis of race, national origin, religion, age, gender, sexual orientation, or disability. (Class III)
4.7.2. The licensee shall enter into a written contract with the resident on admission to the residence that specifies, at a minimum, the following information:
4.7.2.a. The type of resident population that the residence is licensed to serve and will serve;
4.7.2.b. The health and nursing care services that the residence will provide to meet the residents’ needs, including cardiopulmonary resuscitation, and how they will be provided;
4.7.2.c. An annual or monthly contract price, full disclosure of all costs including what changes in care needs will result in increases, additions or modifications to the costs, the refund policy, and an assurance that the resident shall not be held liable for any cost that was not disclosed;
4.7.2.d. Discharge criteria, including notification policies;
4.7.2.e. How to file a complaint;
4.7.2.f. Medication storage, handling, distribution, and disposition, and responsibility for payment;
4.7.2.g. Management of residents’ funds; and
4.7.2.h. Whether or not the residence has liability insurance coverage. (Class III)
4.7.3. The licensee shall provide a copy of the contract to each party in the contract and maintain a copy of the contract on file in the residence. If the existing contract does not meet the requirements of this rule, the licensee shall provide current residents with a new or updated contract that includes the required provisions within 90 days of the effective date of this rule. (Class III)
4.7.4. At the same time as providing the contract, the licensee shall also provide the resident with the following information:
4.7.4.a. House rules governing resident behavior and responsibilities, including the residence’s smoking policy;
4.7.4.b. The resident’s bill of rights;
4.7.4.c. How the resident’s personal property will be protected from loss and theft;
4.7.4.d. The requirements for medical examinations and treatment orders;
4.7.4.e. How the resident will be assisted in making appointments for medical, dental, nursing, or mental health services, and how transportation to and from these services will be arranged; and
4.7.4.f. How to access the residence’s policies and procedures. (Class III)
4.7.5. The licensee is prohibited from entering into a life care contract without the prior written permission of the Director. In making a determination to grant permission, the Director shall consider the licensee’s financial situation by reviewing the licensee’s financial statements for a minimum of three years and any related information he or she requests; the licensee’s experience in the management of a life care community; and the licensee’s ability to potentially manage residents with a catastrophic illness or disease. (Class III)
4.7.6. Thirty days prior to any increase, addition, or other modification of the rates of the resident’s care or services, the licensee shall give the resident a written notice of the proposed change. However, when the increase, addition, or modification in cost is required by the resident’s increased care needs as determined by a licensed health care professional, and the licensee has informed the residents, in writing, of the possibility of such increase, addition, or modification at the time of admission and periodically during his or her stay, the 30-day notice shall be waived. The licensee shall instead give the residents a choice between paying the increase, addition, or modification or moving to another residence. If the resident chooses to move, the resident is required to give notice of the move as set out in the admission contract. (Class III)
4.7.7. The licensee shall give the resident notice of and file a copy of the notice in the resident’s record of the 30-day written notice prior to discharge, unless an emergency situation arises that requires the resident’s transfer to a hospital or other higher level of care, or if the resident is a danger to him or herself or others. (Class III) The licensee shall assist the resident to find an alternative placement that is appropriate to the resident’s individual needs as identified by the service plan.
4.7.8. The licensee shall maintain a register of all residents in order by the dates of the residents’ admissions. The register shall include each resident’s name, the date of admission, the date of his or her last day in the residence, and if transferred, the name of the place to which the resident was transferred. (Class III)
4.7.9. The licensee shall keep resident records in safe storage for at least five years from the date of the death, discharge, or transfer of the resident. If the residence ceases to operate, the licensee shall procure a holding area for the resident records that will ensure the confidentiality and safety of the records from loss, destruction, or unauthorized use. (Class III)
4.8. Management and Control of Resident Funds.
4.8.1. The licensee shall manage a resident’s funds at the written request of the resident only, in the manner directed by the resident, in the resident’s best interests, using generally accepted accounting principles to manage the funds, and in accordance with this rule. (Class III)
4.8.2. The licensee shall assure that the accounting system does not commingle resident funds with the assisted living residence’s funds or with the funds of any other person. (Class III)
4.8.3. The licensee shall deposit a resident’s personal funds exceeding $200 in an interest-bearing account at a local bank. (Class III)
4.8.4. If the licensee handles resident funds in excess of $25 per resident and in excess of $500 for all residents in any month, he or she shall file a bond in an amount and with such surety as the Director approves that is sufficient to cover all resident funds at all times. The sum of the bond to be fixed by the Director based upon the amount of resident funds may not be less than $2,500, as shown in Table 71-21 A at the end of this rule. When the amount of any bond that is filed is insufficient to adequately protect the resident funds, or when the amount of the bond is impaired, the licensee shall file an additional bond in an amount necessary to adequately protect the resident funds. (Class III)
4.8.5. The licensee shall maintain an account record with supporting documentation for each resident that shows in detail all funds received on behalf of the resident and the disposition of all funds received. Persons shopping for residents shall provide a list with a description and the price of items purchased if the purchase exceeds $10, along with payment receipts, for these items. (Class III)
4.8.6. The licensee shall provide upon request a complete, accurate accounting of the receipt, management, and disposition of resident funds to the resident and his or her representative, any authorized entity, and to the Director, and at least quarterly to the resident if not requested. (Class III)
4.8.7. If the resident or legal representative requests to terminate the resident’s account, the licensee shall provide an accounting for all funds received and expended and refund any money remaining in the account to the resident or legal representative. (Class III)
W. Va. Code R. § 71-21-5 Resident Rights
5.1. General Rights.
5.1.1. The licensee shall post in a conspicuous place the assisted living residence’s license, a copy of the residents’ rights, the house rules including visiting hours, and the phone numbers of the abuse hotline, the Office of Health Facility Licensure and Certification, and the state ombudsman. (Class III)
5.1.2. The licensee shall also post the name, address, and telephone number of the designated long-term care ombudsman program serving the region in which the residence is located, with a brief description of the services provided by the long-term care ombudsman program, and a statement of the penalties for willful interference and retaliation. (Class III)
5.1.3. The licensee shall provide one or as many copies as needed of the residents’ rights to the resident. (Class III)
5.1.4. The licensee shall promptly notify the resident and the resident’s legal representative or designated family member when there is a change in residents’ rights. (Class III)
5.1.5. The licensee shall notify the resident and his or her representative or designated family member at least 72 hours prior to a change in room or roommate assignment unless an emergency situation occurs. (Class III)
5.1.6. The resident has the right to have a representative exercise one or more of the resident's rights, to the extent provided by federal and state law.
5.1.6.a. The licensee must treat the decisions of the legal representative as the decisions of the resident to the extent required by a court or delegated by the resident, in accordance with federal and state law.
5.1.6.b. The resident retains the right to exercise those rights not delegated to the legal representative, including the right to revoke a delegation of rights, except as limited by state law.
5.1.6.c. The licensee shall not extend to the legal representative the right to make decisions on behalf of the resident beyond the extent required by the court or delegated by the resident, in accordance with federal and state law.
5.1.7. Nothing in this rule shall in any way be construed to diminish or deprive any individual of his or her rights under federal and state laws. (Class III)
5.1.8. A resident shall be encouraged and assisted to exercise his or her rights as a resident and as a citizen, including voting in governmental elections. (Class III)
5.1.9. A resident has the right to be free from restraint, interference, coercion, discrimination, or reprisal from the licensee in exercising his or her rights. (Class II)
5.1.10. A resident has the right to be free from discriminatory practices related to admission or services on the grounds of race, religion, national origin, age, gender, sexual orientation, or disability. (Class II)
5.1.11. A resident has the right to manage his or her financial affairs and shall not be required to deposit his or her personal funds with the residence. (Class III)
5.1.12. A resident has the right to inspect all of his or her records, to obtain one free copy of the records, and to purchase additional copies at a reasonable cost. (Class III)
5.1.13. A resident has the right to view the results of inspections and complaint investigations conducted by the licensing agency. The licensee shall make available, in a place accessible to residents, the deficiencies cited during the most recent survey, any complaint investigation conducted within the preceding 12 months, and the residence’s plan of correction. (Class III)
5.1.14. A resident has the right to retain and use personal possessions including furnishings and clothing as space permits, unless to do so would infringe upon the rights, health, or safety of other residents. (Class III)
5.2. Treatment.
5.2.1. A resident has the right to participate in planning his or her overall care, to use the physician and pharmacist of his or her choice, to be fully informed in advance about care and treatment that may affect him or her, to make advanced directives about his or her medical care, and to refuse treatment. (Class II)
5.2.2. The licensee shall ensure that no resident is abused, exploited, neglected, mistreated, or restrained by physical or chemical means. Staff shall only use physical restraints in an emergency under physician’s order and for the safety of the resident or others in the assisted living residence until professional help arrives on the premises. Restraint use shall not exceed a 24-hour period. Restraints used during emergencies are limited to a cloth vest or soft belt restraints, and only trained staff shall apply a restraint. Staff shall release the restraint every two hours for at least 10 minutes. Staff shall document in the resident record the reason for restraint use and all procedures followed. Only half-length bed side rails are permissible. (Class I)
5.2.3. The licensee or staff shall report neglect, abuse, or emergency situations immediately, in accordance with W. Va. Code §9-6-9, by contacting the adult protective services at the centralized reporting center utilizing the hotline number. In all situations of suspected abuse or neglect, the Department of Human Services Adult Protective Services reporting form must be completed within 48 hours and sent to the appropriate parties as written follow-up to the immediate report. In addition, the licensee or staff shall contact the Office of Health Facility Licensure and Certification as provided in subsection 5.2.6. of this rule. The Director may report alleged failures by a licensed health care professional to report alleged incidents of neglect, abuse, or emergency situations to the individual’s licensing board. (Class I)
5.2.4. The licensee shall ensure that all allegations involving abuse, exploitation, or neglect are immediately and thoroughly documented and investigated by the licensee, or his or her designee, on receipt of the allegation. While the investigation is in progress, the licensee shall take measures to ensure that further abuse does not occur. (Class I)
5.2.5. If the allegation is substantiated, the licensee shall assure that appropriate sanctions are invoked, or actions are taken to prevent a reoccurrence of alleged abuse, exploitation, or neglect. (Class I)
5.2.6. The licensee shall notify the Office of Health Facility Licensure and Certification within 72 hours of the date of an allegation of abuse, exploitation, or neglect. The licensee shall concurrently forward to the Office of Health Facility Licensure and Certification documentation of the investigation, the results of the investigation and the response to the investigation. (Class III)
5.2.7. A resident has the right to refuse to participate in experimental research. A resident may participate in experimental research only when he or she has given prior written informed consent that conforms with applicable federal and state laws. (Class II)
5.2.8. A resident has the right to make choices regarding the activities of his or her daily life, including but not limited to when to retire at night or arise in the morning. (Class III)
5.2.9. A resident has the right to be free to leave the residence and grounds according to his or her needs and capabilities as documented in the service plan. (Class II)
5.2.10. A resident has the right to personal privacy and confidentiality, including accommodations, medical treatment, records, written and telephone, computer and other electronic communications, personal assistance, and visits and meetings of family and resident groups. (Class II)
5.2.11. Except as may be provided in subsection 5.3.10. of this rule, the use of visual and auditory devices to monitor areas of the assisted living residence is restricted to common areas only. The licensee shall provide written notice to the resident or his or her legal representative of the use of these devices at the time of admission and also post a notice about their use in a prominent place in the residence. (Class III)
5.2.12. No person shall enter a resident’s room without identifying himself or herself to the resident and receiving the resident’s permission to enter. (Class III)
5.2.13. A resident has the right to voice grievances with respect to treatment or care provided without discrimination or reprisal for voicing the grievance. (Class II)
5.2.14. A resident has the right to prompt action by the licensee to resolve any complaints the resident has, including those with respect to the behavior of other residents. The licensee shall respond to the complainant in writing no later than four days after the complaint is filed. (Class III)
5.2.15. A resident has the right to be employed inside or outside the residence if the resident enters into the agreement voluntarily and the agreement to work in the residence is not a condition for admission or continued stay in the residence. A resident who performs staff duties shall meet the personnel and health requirements for that position and shall not perform work that creates conditions potentially hazardous for himself, herself, or others. (Class II)
5.2.16. A resident has the right to refuse to perform services for the residence. (Class III)
5.3. Access, Visitation, and Communication.
5.3.1. A resident has the right to participate in social, religious, and community activities of his or her choice. (Class III)
5.3.2. A resident has the right to meet and communicate privately with persons of his or her choice. (Class III)
5.3.3. A resident has the right to assemble and organize with other residents to solicit and recommend improvements in the assisted living residence’s services and to resolve problems that arise between the residents and the licensee. (Class III)
5.3.4. A resident has the right to send and promptly receive unopened mail. A staff member shall only open and read correspondence when requested by a resident. (Class III)
5.3.5. A resident shall have access to stationery, postage, and writing tools. (Class III)
5.3.6. A resident shall have access to a telephone and privacy during its use. (Class III)
5.3.7. A resident has the right to receive visitors during established and mutually agreed upon visiting hours, but relatives, members of the clergy, and other individuals of the resident’s choosing may visit at any time, subject to the resident’s right to withdraw consent. No visitor’s presence may infringe upon the rights of other residents. (Class II)
5.3.8. A resident has the right to receive information from agencies acting as client advocates, such as the state’s long-term care ombudsman program, and to contact these agencies. (Class II)
5.3.9. All of the following shall have immediate access to any resident and the premises of the assisted living residence; any representative of the state acting in an official capacity related to assisted living residences; the resident’s individual physician; the state and local long-term care ombudsmen; and agencies responsible for the protection and advocacy system for mentally retarded or developmentally disabled individuals and the mentally ill. (Class I)
5.3.10. A resident may have and utilize videoconferencing equipment and technology in their private room if all of the following conditions exist:
5.3.10.a. The resident makes the facility aware of the equipment and videoconferencing technology;
5.3.10.b. The facility allows or authorizes the videoconferencing technology, software and equipment;
5.3.10.c. The resident is made aware and adheres to facility policies regarding use of videoconferencing, including required notice or signage to those entering the room of a resident that is utilizing videoconferencing, how to handle breaches of privacy in live videoconferencing and recorded and stored media, and times in which privacy of the resident or others may dictate non-usage;
5.3.10.d. There is a notice posted to those entering the facility that videoconferencing equipment and technology may be in use in residents’ apartment or room; and
5.3.10.e. Similar to the acceptance and use of a telephone, the resident must actively allow or accept incoming videoconferencing or initiate outgoing videoconferencing for each use. A resident shall not have or be authorized to use unintended video feed on a full-time basis or hidden cameras.
W. Va. Code R. § 71-21-6 Health Care Standards
6.1. Admission and Discharge.
6.1.1. The licensee shall not admit to the assisted living residence individuals requiring ongoing or extensive nursing care and shall not admit or retain individuals requiring a level of service that the residence is not licensed to provide or does not provide. (Class I)
6.1.2. A resident whose condition declines after admission and is receiving services coordinated by a licensed hospice or certified home health agency, may receive these services in the residence if the residence has a backup power generator for services using equipment that requires auxiliary electrical power in the event of a power failure. The licensee shall ensure that a resident who requires ongoing or extensive nursing care is provided the care and services necessary to meet his or her needs. The provision of services to the residence receiving nursing care or hospice care shall not interfere with the provision of services to other residents. (Class I)
6.1.3. If a resident exhibits symptoms of a mental or developmental disorder that pose a risk to self or others, and the resident is not receiving behavioral health services, the licensee shall advise the resident or his or her legal representative of the behavioral health service options within the community. The resident shall have 30 days to obtain necessary services. If the resident or his or her legal representative fails to seek treatment in a timely manner and the risk persists, then the licensee after consultation with the resident’s physician, shall refer the resident to a licensed behavioral health provider. (Class II)
6.1.4. The licensee shall seek immediate treatment for a resident or may refuse to admit or retain a resident if there is reason to believe that the resident may suffer serious harm, or is likely to cause serious harm to himself, herself or to others, if appropriate interventions are not provided in a timely manner. (Class I)
6.1.5. If a resident has care needs that exceed the level of care for which the residence is licensed or can provide, the licensee shall inform the resident, or his or her legal representative in writing, of the need to move to a health care facility that can provide the needed level of care. (Class III)
6.1.6. The licensee shall assist the resident, or his or her legal representative, to secure placement in another health care facility and shall document in the resident’s record the efforts made to obtain placement. (Class III)
6.1.7. Prior to transfer or discharge of a resident, the licensee shall prepare a summary to accompany the resident that includes the resident’s medical history, functional needs assessment and service plans, the current physician’s orders, the resident’s advanced directives, any allergies and pertinent progress notes. The licensee shall retain a copy of such documentation in the resident’s record. (Class II)
6.2. Records.
6.2.1. The licensee shall retain residents’ records in a secure area in the residence and shall make the records available for inspection by the Director. (Class III)
6.2.2. Upon a resident’s admission, the licensee shall start a record for him or her that includes:
6.2.2.a. The resident’s name, social security number, date of birth, sex, marital status, and religious preference, if any;
6.2.2.b. The names, addresses, and telephone numbers of the following, if applicable: the resident’s physician, dentist, legal representative, person or agency responsible for the resident’s support payments, next of kin or person to be notified in case of an emergency, and any case management agency involved in the resident’s care.
6.2.2.c. All agreements or contracts entered into between the resident and the licensee;
6.2.2.d. Advanced directives; allergies; the dates of appointments with physicians, dentists, or other health care providers; all contacts by the residence’s staff with the residence’s physician; and observations by licensed nurses, physicians, and others authorized to care for the resident; and
6.2.2.e. Copies of all documents granting legal authority to a representative.
6.2.2.f. Any other information as required in sections 6.3., 6.4., 6.5., 6.6., 6.7., and 8. of this rule. (Class III)
6.2.3. The licensee shall keep in each resident’s record current documentation regarding the resident’s health status, any changes in health status, and staff responses to the changes. (Class II)
6.3. Assessments and Service Plans.
6.3.1. Each resident shall have a written, signed, and dated health assessment by a physician or other licensed health care professional, authorized under state law to perform this assessment, not more than 60 days prior to the resident’s admission, or no more than five working days following admission, and at least annually after that. The admission and annual health assessment shall include screening for tuberculosis and other communicable diseases if indicated by exposure, prevalence, or risk according to current medical practice to congregate living situations as indicated by the Director. The licensee shall maintain documentation of the assessment in the resident’s medical record. (Class II)
6.3.2. Within five days of admission, each resident shall have an individualized functional needs assessment completed in writing by a licensed health care professional which is maintained in the resident’s medical record. At a minimum, the resident’s assessment shall include a review of health status and functional, psycho social, activity, and dietary needs. (Class II)
6.3.3. Within seven days of admission, each resident shall have a service plan based upon his or her functional needs assessment and individual needs that includes, but is not limited to, the type of assistance needed to perform activities of daily living; the ability to receive prescribed medications and treatments; the ability to follow any planned diet, rest, or activity regimen; the ability to engage in activities and programs appropriate to the individual’s level of functioning; and the ability to use equipment such as hearing aids, glasses, and canes. Staff shall have access to the service plan, use it as a guide for providing resident care, and maintain it as a part of the resident’s medical record. (Class II)
6.3.4. The licensee shall ensure that the functional needs assessment and service plans reflect the resident’s current needs and are updated annually or as indicated by a significant change in the resident’s condition. (Class II)
6.4. Medications and Treatments.
6.4.1. The licensee shall ensure that resident care is provided by appropriately licensed health care professionals, and that medications and treatments given to residents are administered as required by applicable federal and state law, including W. Va. Code §§16B-10-1, et seq. and Office of Inspector General Legislative Rule, Delegation of Medication Administration and Performance of Health Maintenance Tasks by Approved Medication Assistive Personnel, W. Va. Code R. §§71-17-1, et seq. (Class I)
6.4.2. A prescription or written or verbal order from a professional authorized by state law to prescribe medications is required for obtaining, altering, discontinuing, and administering or self-administering prescription and over-the-counter medications, treatments, and therapies. The licensee shall keep copies of the prescriptions or written orders in the resident’s record. (Class I)
6.4.3. A licensed health care professional shall determine whether or not a resident is capable of self-administration of medications in accordance with section 2.35. of this rule and shall document it in the resident’s medical record prior to the resident self-administering medications, and also on a significant change of the resident’s condition. (Class II)
6.4.4. The prescribing health care professional who gives a verbal order shall review and sign the order within 30 working days of the original order date. (Class II)
6.4.5. The attending physician, prescribing health care professional, or a consulting pharmacist shall review the medication regimen of each resident as needed, and at least annually. The resident’s record shall contain documentation of this review. (Class II)
6.4.6. The licensee shall keep a record of all medications given to each resident indicating each dose administered. The record shall include the resident’s name; the name of the medication; the dosage to be administered and route of administration; the time or intervals at which the medication is to be administered; the date the medication is to begin and end; the printed name, initials, and signature of the individuals who administered the medication; and any special instructions for handling or administering the medication, including instructions for maintaining aseptic conditions and appropriate storage. (Class I)
6.4.7. The licensee shall keep medications in a locked room, cabinet, or other storage receptacle, accessible only to the staff responsible for medications. If a resident is capable of self-administration of medication, the licensee shall provide him or her resources to store medications in a manner to be inaccessible to other residents. (Class I)
6.4.8. The licensee shall store all medications in their original containers, legally dispensed, and labeled in accordance with the rules of the West Virginia Board of Pharmacy, for the resident for whom it has been prescribed, including the name and strength of medication, manufacturer name, lot number, and expiration date. Only a licensed pharmacist shall re-label medications. If the prescribing health care provider changes medication directions, the licensee shall have a written, signed, and dated order for the change in the resident’s record. (Class I)
6.4.9. If refrigeration of medication is required, the licensee shall provide: a refrigerator in a locked room, a locked refrigerator, or a locked box within the refrigerator for storage. A thermometer is required in a refrigerator storing medications. The licensee shall store refrigerated medications within the recommended temperature range on the medication package. (Class II)
6.4.10. If Schedule II drugs of the Uniform Controlled Substances Act W. Va. Code §§60A-2-101, et seq. are administered, a copy of the written prescription signed by the physician shall be in the resident’s record and a proof of use record shall be maintained. Schedule II drugs shall be stored in a manner so that they are securely protected by two locks. The key to the separately locked Schedule II drugs shall not be the same key that is used to gain access to the non-scheduled drugs. (Class I)
6.4.11. The licensee shall not return unused, discontinued, or outdated drugs listed in Schedules II, III, IV or V of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801, et seq., to the pharmacy, but shall destroy them in the presence of a pharmacist and a registered nurse; and keep a record for at least two years that contains the resident’s name that was on the prescription, the name and strength of the drug, the prescription number, the amount destroyed, the date of destruction, and the signatures of the witnesses. (Class III)
6.4.12. The licensee shall have a policy regarding unused over-the-counter and non-scheduled drugs of a resident no longer at the facility.
6.4.13. When a resident requires oxygen, the licensee shall ensure there is a portable source available for out-of-room activities and in the event of power failure.
6.4.14. The licensee shall provide all resident care and services in accordance with current standards of practice using appropriate infection control techniques. (Class I)
6.5. Accident, Illness, and Major Incident Procedures.
6.5.1. The licensee shall have readily available at all times a standard first-aid kit, or its equivalent, to provide emergency aid for commonly occurring household injuries. (Class III)
6.5.2. When a resident has an illness or accident that results in an injury or a resident complaint, the staff shall contact an appropriately licensed health care professional to assess the severity and cause of the illness or accident, advise of the treatment needed related to the accident or illness, and record actions taken in the resident’s record. If the resident needs emergency assistance, the staff on duty shall first obtain the necessary assistance. (Class I)
6.5.3. Staff shall monitor and document the resident’s condition at least once every eight hours for a period of 24 hours following the accident or the onset of the illness, more frequently if specified by the licensed health care professional, or at least every four hours if the resident suffers from Alzheimer’s disease or a related dementia and cannot communicate his or her condition or needs. (Class II)
6.5.4. When a major incident or any significant change in the resident’s condition occurs, the staff shall promptly notify the resident’s physician or other appropriately licensed health care professional, such as emergency medical personnel, and the responsible party or next of kin, and document this notification in the resident’s record. (Class I)
6.5.5. If an epidemic occurs or a reportable disease is diagnosed, the licensee shall comply with the recommendations of the local public health authority in handling and reporting it. (Class I)
6.6. Limited and Intermittent Nursing Care.
6.6.1. The licensee shall arrange for a registered professional nurse to assume responsibility for the oversight of nursing care and services. Arrangements for nursing services may be made by contract with a registered nurse or a nursing service with a management entity; or the licensee may employ a registered nurse. Arrangements with a home care agency will satisfy the requirement for nursing oversight if they meet all the requirements of this section. (Class I)
6.6.2. The licensee shall ensure that the registered nurse is notified immediately when a resident with nursing care needs is admitted or readmitted, and immediately when a nursing care need for a current resident is identified. Documentation of the notification shall be in the resident’s record. (Class I)
6.6.3. The licensee shall implement the recommendations of the registered nurse regarding care, services, and staff training. (Class I)
6.6.4. Unless the licensee employs a full-time registered nurse, he or she shall ensure that the registered nurse maintains a record with an entry for each visit which shall include at least the date, time in, and time out; a list of duties performed during each visit; a brief statement regarding identified concerns and recommended actions taken to resolve them; and a complete signature. (Class III)
6.6.5. The licensee shall develop a plan that provides for 24-hour accessibility between the residence, the registered nurse, and other emergency personnel. (Class I)
6.6.6. A registered nurse shall perform and document a nursing assessment for each resident with nursing needs within 24 hours following admission and update the assessment at the time of any significant, temporary, or permanent change in the resident’s condition. (Class I)
6.6.7. A registered nurse shall develop and document a service plan to meet any identified nursing and medical needs of the resident within seven days after admission and shall update the plan at the time of a significant temporary or permanent change in condition. (Class I)
6.6.8. A registered nurse shall see the resident weekly, if the resident has nursing care needs, and more often if indicated by the needs of the resident, and document a progress note in the resident’s record reflecting the status of the resident and any changes in his or her condition. (Class II)
6.6.9. A registered nurse shall provide needed training or recommend to the licensee appropriate training for staff, including when to contact the registered nurse regarding changes in a resident’s condition. (Class II)
6.6.10. A registered nurse shall participate in the decision to admit or discharge a resident with nursing care needs. (Class II)
6.7. Resident Death.
6.7.1. Staff shall immediately report the suspected death of a resident to the resident’s physician, to the resident’s next of kin or legal representative, and hospice staff, if applicable. Any death suspected to be the result of abuse or neglect shall be immediately reported to the coroner. (Class III)
6.7.2. Upon the death of a resident, the following information shall be entered in the resident’s record:
6.7.2.a. A record of the date and time of the notification of the resident’s physician or hospice staff, the resident’s representative or next of kin; and
6.7.2.b. The date, time, and circumstance of death, including the name of person to whom the body was released and any other details specific to the death. (Class III)
6.7.3. Upon a resident’s death, the licensee shall release all of the resident’s belongings and funds to the estate administrator or executor. Documentation of release to the estate administrator or executor shall be maintained by the assisted living residence. (Class III)
W. Va. Code R. § 71-21-7 Activities
7.1. The licensee shall provide an activity program designed to meet the interests of, and promote the highest level possible of well-being in, all dimensions of life including physical, psychological, social, and spiritual, of each resident.
7.2. The program shall:
7.2.1. Provide information and referral services and facilitate opportunities for using the social, recreational, and vocational activities within the community;
7.2.2. Provide a minimum of seven hours per week, one hour per day, unless the residents request more, of various types of scheduled activities, including activities appropriate for residents with Alzheimer’s disease or a related dementia; and
7.2.3. Provide a monthly calendar that lists the type, time, and duration of all social and recreational activities for the residents and documentation that activities did or did not take place. (Class III)
W. Va. Code R. § 71-21-8 Dietary Services
8.1. The licensee shall provide meals that are in substantial compliance with current Recommended Dietary Allowances of the Food and Nutrition Board of National Academy of Sciences, National Research Council, or as specified in this rule, except as ordered by a physician. (Class II)
8.2. The licensee shall ensure that each resident is offered at least three freshly prepared meals seven days a week, and also special diets and snacks that meet the resident’s needs and choices, as identified in his or her needs assessment. The meals shall provide a variety of foods as follows:
8.2.1. Breakfast: fruit or juice, cereal, whole-grain or enriched bread products, and Grade A vitamin D milk.
8.2.2. Noon and evening meals: protein sources, such as meat, poultry, fish, eggs, cooked dried legumes, cheese, or peanut butter; vegetables or fruit; whole-grain or enriched grain food products; and Grade A vitamin D milk. (Class II)
8.3. When therapeutic or modified diets are provided by the residence, the licensee shall maintain on file a physician’s order for each diet. The licensee shall prepare therapeutic or modified diets, as ordered by the physician, according to written instructions that includes types and amounts of food to be served, obtained from the resident’s physician or a dietician. At no time shall a resident be offered less than 1,400 calories daily, unless specifically ordered by a physician. (Class I)
8.4. The licensee shall provide each resident with the amount of food and fluid on a daily basis necessary to maintain his or her appropriate minimum average weight. Staff shall weigh residents upon admission and monthly thereafter and document the resident’s weight in his or her record. If the staff notes an unplanned weight loss or gain of five pounds or more in the resident’s record, the staff shall report it to the resident’s physician. (Class III)
8.5. The licensee shall encourage resident participation in menu planning and shall serve meals at times mutually agreed upon by residents in the assisted living residence with consideration of individual resident preferences. (Class III)
8.6. The licensee shall accommodate residents who are unable to eat at the planned mealtime and provide for a meal substitution if the resident does not tolerate or like the foods planned for the meal. (Class III)
8.7. The licensee shall maintain a daily record of actual foods served for each meal and vary the menu content. (Class III)
8.8. The licensee shall keep grocery receipts and records of actual food served to the residents on file in the assisted living residence for at least 30 days. (Class III)
8.9. The licensee’s food service facilities shall comply with Department of Health Legislative Rule, Food Establishments, W. Va. Code R. §§64-17-1, et seq. (Class II)
W. Va. Code R. § 71-21-9 Fire Safety, Disaster and Emergency Preparedness and Training
9.1. Fire Safety. The licensee shall provide evidence of compliance with applicable rules of the state fire commission. The state fire marshal’s and Director’s written approval are required for any variation from compliance with the fire code. (Class I)
9.2. Disaster and Emergency Preparedness Plan.
9.2.1. The assisted living residence shall have a written disaster and emergency preparedness plan with procedures to be followed in any emergency that could severely affect the operation of the residence. (Class II)
9.2.2. The disaster and emergency preparedness plan shall have procedures with specific tasks and responsibilities for each class of employee in the event of missing residents, high winds, tornadoes, floods, bomb threats, utility failure, and severe winter weather. (Class II)
9.2.3. The disaster and emergency preparedness plan shall include a minimum of an emergency alternate shelter agreement, an emergency transportation policy, and a three-day food and drinking water supply. (Class II)
9.2.4. The licensee shall provide copies of the disaster and emergency preparedness plan at all staff stations; and staff shall know the location of the plan at all times. (Class I)
9.2.5. The licensee or administrator shall review and update the disaster and emergency preparedness plan on an annual basis and shall sign and date the plan to verify review. (Class III)
9.2.6. The licensee shall conspicuously post emergency call information near each telephone in the residence, excluding telephones in residents’ rooms, with the telephone numbers of the fire department, the police, an ambulance service, and other appropriate emergency services, and key staff telephone numbers. (Class I)
9.2.7. The licensee shall rehearse the disaster and emergency preparedness plan with all staff from each shift annually and shall keep documentation of the rehearsal that includes verification of participation by each employee’s signature and a critique of the rehearsal by the licensee or administrator. (Class I)
9.2.8. The licensee shall within 24 hours of admission, show all new residents how to evacuate the residence in an emergency, and shall document this in the residents’ records. (Class I)
W. Va. Code R. § 71-21-10 Physical Facilities
10.1. Physical Facilities and Equipment.
10.1.1. The licensee of an assisted living residence built, renovated, or altered after the effective date of this rule shall maintain the residence in accordance with the requirements of section 3.12. of this rule. (Class I)
10.1.2. The licensee shall provide maintenance and housekeeping to the interior and exterior of the residence that maintains a safe, sanitary, and accident-free living environment. (Class I)
10.1.3. The licensee shall establish and conduct a program of preventative maintenance for all equipment as recommended by the manufacturer. (Class III)
10.1.4. The licensee shall keep the interior and exterior of the residence clean and in good repair. (Class II)
10.1.5. The licensee shall keep the residence free of insects, rodents, and vermin. (Class III)
10.1.6. Any method of extermination of insects, rodents, and vermin used by the licensee in the residence shall not create a fire or health hazard. (Class I)
10.1.7. The residence shall have a heating system capable of maintaining a temperature in all rooms used by residents of at least 72 degrees Fahrenheit. (Class II)
10.1.8. The residence shall have cooling devices or a system so that inside temperatures do not exceed 80 degrees Fahrenheit. Acceptable cooling devices include, but are not limited to, air conditioners, electric fans, and heat pumps. (Class II)
10.1.9. The residence shall have a call system that is audible to staff and can be accessed from each bed and other areas as necessary for the safety of residents. (Class II)
10.1.10. The Director may require the licensee to provide alarm systems for resident safety if a resident exhibits potentially harmful behaviors such as wandering from the residence. (Class I)
10.1.11. The residence shall have space for the storage of linens, maintenance and housekeeping supplies, equipment, and food supplies. (Class II)
10.2. Bedrooms.
10.2.1. The licensee shall provide each resident with a bed in a bedroom and shall not place beds in corridors, living rooms, kitchens, dining rooms, basement, attic, or any other area not commonly used as a bedroom. (Class II)
10.2.2. In an existing large, assisted living residence, bedrooms shall contain at least 80 square feet of floor area per resident. In an existing small, assisted living residence, semi-private bedrooms shall contain at least 60 square feet of floor area per resident and private rooms shall contain 80 square feet. (Class III)
10.2.3. In a newly constructed or renovated residence no more than two persons shall occupy a bedroom. In an existing residence no bedroom shall be occupied by more residents than the bed capacity approved by the Director on the effective date of this rule. (Class III)
10.2.4. Staff of the residence shall not share bedrooms with residents and shall not use resident bedrooms for any purpose other than to house residents. (Class III)
10.2.5. At least three feet of space shall separate beds. (Class III)
10.2.6. The licensee shall ensure that each resident has a bed and mattress at least 36 inches wide that are substantially constructed, in good repair, comfortable, and able to accommodate the resident’s needs and promote independence. (Class III)
10.2.7. Each bed shall have a clean, comfortable pillow, pillow case, two sheets, a bed spread or other type of covering, and additional bed covering to keep residents warm during emergencies and cold weather. (Class III)
10.2.8. The licensee shall ensure that there is a supply of sheets, pillow cases, bed coverings, towels, wash cloths, and other linens necessary to provide a minimum of two changes per bed, and clean bed linens for each resident at least once a week and more often if needed. (Class III)
10.2.9. The licensee shall ensure that every closet door latch can be readily opened from inside in case of emergency. (Class II)
10.2.10. The licensee shall ensure that windows have curtains, shades, or blinds that may be opened and closed and are kept clean and in good repair. (Class III)
10.2.11. The licensee shall ensure that each bedroom has at least the following furniture for each resident:
10.2.11.a. A night stand or the equivalent;
10.2.11.b. A closet, locker, or wardrobe space with a minimum dimension of 20 inches by 22 inches by 60 inches, excluding shelf and storage space;
10.2.11.c. A chest of drawers, or the equivalent, with at least three drawers for the storage of clothing and personal items; and
10.2.11.d. A chair suitable to the resident’s needs and an adequate light source for reading. (Class III)
10.2.12. The licensee shall provide bedroom furnishings that are in good repair, reasonably attractive and comfortable, of a nature to suggest a private home setting, and with residents’ individual tastes taken into consideration. When space permits, residents’ personal furniture may be used. (Class III)
10.3. Toilets, Hand Washing, and Bathing Facilities.
10.3.1. An existing residence’s toilet and bathing facilities shall consist of the following: 10.3.1.a A bathroom containing a flushing toilet and hand washing sink, with a mirror over the sink, at a ratio of one toilet and lavatory for every six residents; and
10.3.1.b. A minimum of one bathing facility per floor, with a bath tub or shower, equipped with non-slip surfaces, a flushing toilet, and a hand washing sink; at a ratio of one per 10 residents. (Class III)
10.3.2. The licensee shall ensure that toilet and bathing facilities are provided with liquid soap, toilet tissue, and a sanitary method for drying hands. (Class III)
10.3.3. The licensee shall provide towel bars either in the residents’ bedroom or the bathroom. Space for towel bars shall accommodate the number of residents using the bathing facility.
10.3.4. Bath tubs, showers, and sinks shall not be used for storage of linens and clothing to be laundered or for laundering of soiled linens and clothing. (Class III)
10.4. Dining Area and Leisure Area.
10.4.1. The residence shall have a dining area of at least 15 square feet per resident. (Class III)
10.4.2. The residence shall have an area of at least 15 square feet per resident for leisure space that is equipped for reading and recreational purposes. The leisure area shall have furniture that provides good lower back support, arm rests, and that is clean, odor free, and in good repair. (Class III)
10.4.3. The dining room may serve as part of the leisure room. A combined dining and leisure room shall have a minimum of 30 square feet per resident. (Class III)
10.5. Water Supply and Sewage.
10.5.1. The residence shall have hot and cold running water in sufficient supply to meet the needs of the residents, household members, and employees. (Class I)
10.5.2. The licensee shall maintain hot water temperatures above 105 degrees Fahrenheit and no higher than 115 degrees Fahrenheit at all hot water sources, except for dishwashers and laundry facilities. (Class II)
10.5.3. Hot water temperatures exceeding 120 degrees Fahrenheit shall be considered an immediate and serious threat. (Class I)
10.5.4. The licensee shall use a thermostatic mixing valve to control the temperature of hot water tanks exceeding 80-gallon capacity. (Class II)
10.5.5. The residence shall have a sewage system that is adequate to meet the residents’ needs, kept in good working order, and properly operated and maintained. (Class II)
10.6. Laundry.
10.6.1. The licensee shall ensure that all laundry is dried mechanically in an electric or gas clothes dryer that is vented to the outside, or that a chemical sanitizing agent is added to the rinse water, and the laundry air-dried. (Class II)
10.6.2. The licensee shall ensure that soiled and clean laundry are not stored together at any time; that soiled laundry is stored in non-absorbent, easily cleanable covered containers, or disposable plastic bags; that table and kitchen linens are laundered separately from other washable goods; and that sanitizing agents are used when laundering kitchen, bath, and bed linens. (Class II)
10.6.3. The licensee shall use locked storage facilities, separate from food and drugs, for laundry supplies, housekeeping supplies, insecticides, work supplies, and any other toxic or hazardous material or equipment. (Class I)
10.7. Pets and Other Animals.
10.7.1. Pets are permitted at assisted living residences, provided that all residents are advised prior to admission that pets are kept on the premises. If pets are added after the admission of residents, all residents shall agree to the addition of the pets. (Class III)
10.7.2. Wild, dangerous, or obviously ill animals are prohibited. (Class I)
10.7.3. The licensee shall keep animals and the animals’ quarters in a clean condition at all times. (Class I)
10.7.4. The licensee shall maintain proof that dogs and cats kept in the assisted living residence or on the grounds are properly vaccinated. For dogs, this includes rabies, leptospirosis, distemper, and parvo; and for cats, this includes rabies. (Class II)
W. Va. Code R. § 71-21-11 Licensure Denials, Revocations, and Suspensions
11.1. An assisted living provider licensed by the Office of Health Facility Licensure and Certification adversely affected by an order or citation of a deficient practice may request an informal dispute resolution process. A licensee may contest a cited deficiency as contrary to rule, regulation, or law or unwarranted by the facts, or any combination thereof.
11.2. The informal dispute resolution process is not a formal evidentiary proceeding and utilization of the informal dispute resolution does not waive the right of the licensee to request a formal hearing with the Board of Review.
11.3. The informal dispute resolution process shall consist of the following:
11.3.1. The Director shall transmit to the licensee a statement of deficiencies attributed to the licensee and request that the licensee submit a plan of correction addressing the cited deficiencies no later than 10 working days following the last day of the survey or inspection, or no later than 10 working days following the last day of a complaint investigation. Notification of the availability of the informal dispute resolution process and an explanation of the process shall be included in the transmittal.
11.3.2. When the licensee returns its plan of correction to the Director, the licensee may request, in writing, to participate in the informal dispute resolution process to protest or refute all or part of the cited deficiencies within 10 working days. The Office of Health Facility Licensure and Certification may not release the final report until the informal dispute process is final.
11.3.3. The informal dispute resolution must be held, unless additional time is requested by either the licensee or the Director, within 10 working days of receipt of the written request for the informal dispute resolution process by a licensee. The licensee or the Director may submit additional information before the informal dispute resolution conference.
11.3.4. Neither the Director nor the licensee may be accompanied by counsel during the informal dispute resolution conference. The manner in which the informal dispute resolution conference is held is at the discretion of the licensee, but is limited to:
11.3.4.a. A review of written information submitted by the licensee;
11.3.4.b. A telephonic conference; or 11.3.4.c A face-to-face conference held at a mutually agreed upon location.
11.3.5. If the informal dispute resolution determines the need for additional information, clarification, or discussion at the conclusion of the informal dispute resolution conference, the Director and the licensee shall present the requested information.
11.3.6. The informal dispute resolution committee, consisting of qualified individuals who have no involvement in the investigation or survey being reviewed, shall make a determination within 10 working days of receipt of any additional information as provided or the conclusion of the informal dispute resolution conference, based upon the facts and findings presented, and shall transmit a written decision containing the rationale for its determination to the Director.
11.3.7. If the Director disagrees with the determination, the Director may reject the determination made by the informal dispute resolution process and shall issue an order setting forth the rationale for the reversal of the informal dispute resolution’s decision to the licensee within 10 working days of receiving the independent review provider's determination.
11.3.8. If the Director accepts the determination, the Director shall issue an order affirming the informal dispute review’s determination within 10 working days of receiving the review determination.
11.3.9. If the review determines that the original statement of deficiencies should be changed as a result of the informal dispute resolution process and the Director accepts the determination, the Director shall transmit a revised statement of deficiencies to the licensee within 10 working days of the review determination.
11.3.10. The licensee shall submit a revised plan to correct any remaining deficiencies to the Director within 10 working days of receipt of the Director’s order and the revised statement of deficiencies.
11.4. Establishment of the informal dispute resolution process does not preclude licensees from utilizing other processes provided by statute or rule in lieu of the informal dispute resolution process.
11.5. Administrative and judicial review of a decision rendered through the informal dispute resolution process may be made in accordance with provisions of this rule.
11.6. Any decision issued by the Director as a result of the informal dispute resolution process shall be made effective from the date of issuance.
11.7. The pendency of administrative or judicial review does not prevent the Director or a licensee from obtaining injunctive relief as provided by statute or rule.
11.8. Grounds for Denial, Revocation, or Suspension.
11.8.1. The Director, in consultation with the Inspector General, may deny, revoke, or suspend a license issued pursuant to this rule if any provisions of subsection 11.8.2. are violated. The Director, in consultation with the Inspector General, may revoke a license based upon the findings and results of an annual, periodic, complaint, or other inspection and evaluation. The period of suspension for the license of an assisted living residence shall be prescribed by the Director, in consultation with the Inspector General, but may not exceed one year.
11.8.2. The Director, in consultation with the Inspector General, may deny, revoke, or suspend an assisted living residence license for one or more of the following reasons:
11.8.2.a. The Director, in consultation with the Inspector General, makes a determination that fraud or other illegal action has been committed by any owner of the assisted living residence;
11.8.2.b. The assisted living residence has violated federal, state, or local law relating to licensure, building, health, fire protection, safety, sanitation, or zoning;
11.8.2.c. The assisted living residence engages in practices that jeopardize the health, safety, welfare, or clinical treatment of a resident;
11.8.2.d. The assisted living residence has failed or refused to submit reports or make records available as requested by the Director;
11.8.2.e. An assisted living residence has refused to provide access to its location or records as requested by the Director;
11.8.2.f. An assisted living residence’s administrator or owner has knowingly, and intentionally misrepresented actions taken to correct a violation;
11.8.2.g. An administrator or owner of an assisted living residence concurrently operates an unlicensed assisted living residence;
11.8.2.h. An administrator or any owner knowingly operates, owns, or manages an unlicensed assisted living residence that is required to be registered;
11.8.2.i. The owners of an assisted living residence fail to apply for a new license for the residence upon a change of ownership and operate the residence under the new ownership;
11.8.2.j. An administrator or any owner acquires or attempts to acquire a license for an assisted living residence through misrepresentation or fraud or procures or attempts to procure a license for an assisted living residence for any other person by making or causing to be made any false representation; or
11.8.2.k. The assisted living residence fails to have an administrator at the residence location as required by this rule.
11.9. Effect of Denial, Revocation, or Suspension.
11.9.1. If a license for an assisted living residence has been revoked, the Director, in consultation with the Inspector General, may stay the effective date of the revocation if the owner or owners or administrator of the assisted living residence can show that the stay is necessary to ensure appropriate referral and placement of residents.
11.9.2. If the license of an assisted living residence is denied, revoked, or suspended, no person, firm, association, or corporation may operate the residence as an assisted living residence as of the effective date of the denial, revocation, or suspension. The owners of the assisted living residence are responsible for removing all signs and symbols identifying the premises as an assisted living residence within 30 days from the date of the denial, revocation, or suspension.
11.9.3. If a license for an assisted living residence has been denied, revoked, or suspended the residence must supply, at a minimum, a copy of the following information to the Director;
11.9.3.a. A closure notice to be provided to all residents;
11.9.3.b. The date the closure notice will be provided to all residents;
11.9.3.c. The number of residents to receive the closure notice;
11.9.3.d. A Class II legal advertisement that complies with the requirements of W. Va. Code §§59-3-1, et seq., regarding the residence closure, including the dates the notice will appear and the name of the newspaper; and
11.9.3.e. Contact information the assisted living residence has supplied to residents who may need help locating a new assisted living residence.
11.9.4. Upon the effective date of the denial, revocation, or suspension the administrator or owner of the assisted living residence shall advise the Director and the West Virginia Board of Pharmacy of the disposition of all drugs located at the premises. The disposition is subject to the supervision and approval of the Director and the Drug Enforcement Agency. Drugs that are purchased or held by an unlicensed assisted living residence may be deemed adulterated.
11.9.5. If the license of an assisted living residence is revoked or suspended, no persons owning or operating the assisted living residence, may apply to own, license, or operate another assisted living residence for five years after the date of revocation or suspension, either individually or as part of a group, firm, association, or corporation.
11.9.6. If an assisted living residence license is denied or revoked, a new application for licensure shall be considered by the Director, if, when, and after the conditions upon which denial or revocation were based have been corrected and evidence of this fact has been furnished. A new license may then be granted after proper inspection has been made and the Director makes a written finding that all provisions of this rule have been satisfied.
W. Va. Code R. § 71-21-12 Penalties and Equitable Relief
12.1. Grounds for Penalties and Injunctions.
12.1.1. Any person, partnership, association, or corporation which establishes, conducts, manages, or operates an assisted living residence without first obtaining a license therefore or which violates any provisions of this law or rule may be assessed a civil money penalty by the Director, in consultation with the Inspector General, in accordance with this rule, and, if applicable, W. Va. Code §1B6-5-10. Each day of continuing violation after notification of the infraction may be considered a separate violation and may be subject to an additional civil money penalty.
12.1.2. If the assisted living residence’s owner or owners or administrator knowingly and intentionally misrepresent actions taken to correct a violation, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $10,000, and revoke or deny the assisted living residence’s license.
12.1.3. If an owner or owners of an assisted living residence concurrently operates an unlicensed assisted living residence, the Director, in consultation with the Inspector General, may impose a civil money penalty upon the owner or owners or administrator, or both, not to exceed $5,000. If the owner or owners continue to operate the unlicensed assisted living residence 10 days after notification of the infraction, the Director, in consultation with the Inspector General, may impose a civil monetary penalty not to exceed $5,000 per day.
12.1.4. If the owner of an assisted living residence that requires a license under this article fails to apply for a new license for the residence upon a change of ownership and operates the residence under the new ownership, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $5,000.
12.1.5. If an owner knowingly operates, owns, or manages an unlicensed assisted living residence that is required to be licensed pursuant to this article; knowingly dispenses or causes to be dispensed, controlled substances in an unlicensed assisted living residence that is required to be licensed; or obtains a license to operate an assisted living residence through misrepresentation or fraud; procures or attempts to procure a license for an assisted living residence for any other person by making or causing to be made any false representation, the Director, in consultation with the Inspector General, may assess a civil money penalty of not more than $20,000. The penalty may be in addition to or in lieu of any other action that may be taken by the Director or any other board, court, or entity.
12.2. The Director, in consultation with the Inspector General, may deny an assisted living residence’s application for licensure or application for renewal licensure; revoke or suspend a license; order an admissions ban or reduction in patient census for one or more of the following reasons:
12.2.1. The Director, in consultation with the Inspector General, makes a determination that fraud or other illegal action has been committed;
12.2.2. The residence has violated federal, state, or local law relating to building, health, fire protection, safety, sanitation, or zoning;
12.2.3. The residence conducts practices that jeopardize the health, safety, welfare, or clinical treatment of a resident;
12.2.4. The residence has failed or refused to submit reports, comply with the documentation requirements of this rule, or make records available as requested by the Director or his or her designee; or
12.2.5. A residence has refused to provide access to its location or records as requested by the Director, or his or her designee.
12.3. Notwithstanding the existence or pursuit of any other remedy, the Inspector General may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, or corporation to restrain or prevent the establishment, conduct, management, or operation of any assisted living residence or violation of any provisions of this rule without first obtaining a license therefore in the manner hereinbefore provided.
12.3.1. The Inspector General may also seek injunctive relief if the establishment, conduct, management, or operation of any assisted living residence, whether licensed or not, jeopardizes the health, safety, or welfare of any or all of its residents.
12.3.2. In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the Director, in consultation with the Inspector General, shall consider the following factors:
12.3.2.a. The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident has resulted, or could have resulted, from the assisted living residence’s actions or the actions of the administrator or any licensed practitioner employed by or associated with the residence, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.
12.3.2.b. What actions, if any, the administrator or licensed professional took to correct the violations;
12.3.2.c. Whether there were any previous violations at the assisted living residence; and
12.3.2.d. The financial benefits that the assisted living residence derived from committing or continuing to commit the violation.
12.4. Upon finding that a licensed professional has violated the provisions of this rule, the Director shall provide notice of the violation to the applicable professional licensing board.
W. Va. Code R. § 71-21-13 Administrative Due Process
13.1. Before any assisted living residence is denied, suspended, penalized, or revoked, written notice shall be given to the owner or owners of the residence stating the grounds of the denial, suspension, revocation, or penalty and the date set for any enforcement action.
13.1.1. The notice shall be sent by certified mail to the address where the assisted living residence concerned is located.
13.1.2. Within 30 days of receipt of the notice, the owner or owners may submit a request for an administrative hearing or an informal meeting to address and resolve the findings.
13.1.3. The assisted living residence and its owner or owners shall be entitled to be represented by legal counsel at the informal meeting or at the hearing at their own expense.
13.1.4. All of the pertinent provisions of W. Va. Code §§29A-5-1, et seq., and W. Va. Code R. §§ 69-1-1, et seq., shall apply to and govern any hearing authorized by this rule.
13.1.5. If an owner fails to request a hearing within the time frame specified, he or she shall be subject to the full penalty imposed.
13.1.6. The filing of a request for a hearing does not stay or supersede enforcement of the final decision or order of the Director. The Director, in consultation with the Inspector General, may, upon good cause shown, stay such enforcement.
W. Va. Code R. § 71-21-14 Administrative Appeals and Judicial Review
14.1. Any owner of an assisted living residence who disagrees with the final administrative decision as a result of the hearing may, within 30 days after receiving notice of the decision, appeal the decision to the Intermediate Court of Appeals of West Virginia.
14.1.1. The filing of a petition for appeal does not stay or supersede enforcement of the final decision or order of the Board of Review. An appellant may apply to the Intermediate Court of Appeals of West Virginia for a stay of or to supersede the final decision or order.
14.1.2. The Intermediate Court of Appeals of West Virginia may affirm, modify, or reverse the final administrative decision. The owner or owners, or the Inspector General may appeal the court’s decision to the West Virginia Supreme Court of Appeals.
Table 71-21 A Surety Bond Schedule AVERAGE RESIDENT FUNDS MONTHLY BALANCE REQUIRED SURETY BOND AMOUNT $1 to $2,000 $2,500 $2,001 to $2,100 $2,625 $2,101 to $2,200 $2,750 $2,201 to $2,300 $2,875 $2,301 to $2,400 $3,000 $2,401 to $2,500 $3,125 $2,501 to $2,600 $3,250 $2,601 to $2,700 $3,375 $2,701 to $2,800 $3,500 $2,801 to $2,900 $3,625 $2,901 to $3,000 $3,750 $3,001 to $3,100 $3,875 $3,101 to $3,200 $4,000 $3,201 to $3,300 $4,125 $3,301 to $3,400 $4,250 $3,401 to $3,500 $4,375 $3,501 to $3,600 $4,500 $3,601 to $3,700 $4,625 $3,701 to $3,800 $4,750 $3,801 to $3,900 $4,875 $3,901 to $4,000 $5,000 $4,001 to $4,100 $5,125 $4,101 to $4,200 $5,250 $4,201 to $4,300 $5,375 $4,301 to $4,400 $5,500 $4,401 to $4,500 $5,625 $4,501 to $4,600 $5,750 $4,601 to $4,700 $5,875 $4,701 to $4,800 $6,000 $4,801 to $4,900 $6,125 $4,901 to $5,000 $6,250 $5,001 to $5,100 $6,375 $5,101 to $5,200 $6,500 $5,201 to $5,300 $6,625 $5,301 to $5,400 $6,750 $5,401 to $5,500 $6,875 $5,501 to $5,600 $7,000 $5,601 to $5,700 $7,125 $5,701 to $5,800 $7,250 $5,801 to $5,900 $7,375 $5,901 to $6,000 $7,500 $6,001 to $6,100 $7,625 $6,101 to $6,200 $7,750 $6,201 to $6,300 $7,875 $6,301 to $6,400 $8,00 $6,401 to $6,500 $8,125 $6,501 to $6,600 $8,250 $6,601 to $6,700 $8,375 $6,701 to $6,800 $8,500 $6,801 to $6,900 $8,625 $6,901 to $7,000 $8,750 $7,001 to $7,100 $8,875 $7,101 to $7,200 $9,000 $7,201 to $7,300 $9,125 $7,301 to $7,400 $9,250 $7,401 to $7,500 $9,375 $7,501 to $7,600 $9,500 $7,601 to $7,700 $9,625 $7,701 to $7,800 $9,750 $7,801 to $7,900 $9,875 $7,901 to $8,000 $10,000 $8,001 to $8,100 $10,125 $8,101 to $8,200 $10,250 $8,201 to $8,300 $10,375 $8,301 to $8,400 $10,500 $8,401 to $8,500 $10,625 $8,501 to $8,600 $10,750 $8,601 to $8,700 $10,875 $8,701 to $8,800 $11,000 $8,801 to $8,900 $11,125 $8,901 to $9,000 $11,250 $9,001 to $9,100 $11,375 $9,101 to $9,200 $11,500 $9,201 to $9,300 $11,625 $9,301 to $9,400 $11,750 $9,401 to $9,500 $11,875 $9,501 to $9,600 $12,000 $9,601 to $9,700 $12,125 $9,701 to $9,800 $12,250 $9,801 to $9,900 $12,375 $9,901 to $10,000 $12,500 $10,001 or more Calculate
Series 22 Legally Unlicensed Health Care Homes
W. Va. Code R. § 71-22-1 General
1.1. Scope. -- This legislative rule prescribes specific standards and procedures to provide for the health, safety, and protection of the rights and dignity of residents of legally unlicensed health care homes administered by service providers. This rule does not apply to adult family care providers, approved and monitored by the Department of Human Services. This rule shall be read in conjunction with W. Va. Code §§16B-6-1, et seq.
1.2. Authority. -- W. Va. Code §16B-6-1a(a).
1.3. Filing Date. -- May 28, 2025.
1.4. Effective Date. -- May 28, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
1.6. Applicability. -- This rule applies to service providers, legally unlicensed health care homes administered by service providers, legal representatives of residents in those homes and complainants against service providers.
1.7. Enforcement. -- This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-22-2 Definitions
2.1. Abuse. -- Mistreatment of residents, including physical bodily harm, misuse of physical or chemical restraints, verbal abuse, and infliction of emotional suffering.
2.2. Director. -- The director of the Office of Health Facility Licensure and Certification, or his or her designee.
2.3. Extensive Nursing Care. -- The nursing care required when there is a major deviation from normal in a body system or multiple body systems of such magnitude that the deviations are life threatening, and the individuals’ condition is unstable and unpredictable.
2.4. Immediate and Serious Threat. -- A situation that presents a high probability of serious harm or injury to one or more residents. An immediate or serious threat need not result in actual harm to any resident.
2.5. Inspector General. – The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1, or his or her designee.
2.6. Legal Representative. --
2.6.1. A conservator, temporary conservator or limited conservator appointed pursuant to the West Virginia guardianship and conservatorship act, W. Va. Code §§44A-1-1, et seq., within the limits set by the order;
2.6.2. A guardian, temporary guardian or limited guardian appointed pursuant to the West Virginia guardianship and conservatorship act, W. Va. Code §§44A-1-1, et seq., within the limits set by the order;
2.6.3. An individual appointed as committee or guardian prior to June 9, 1994, within the limits set by the appointing order and W. Va. Code §44A-1-2(d);
2.6.4. An individual having a medical power of attorney pursuant to the West Virginia medical power of attorney act, W. Va. Code §§16-30A-1, et seq., within the limits set by the law and the appointment;
2.6.5. An individual named as representative payee under the United States social security act, title 42 U.S.C. §§ 301, et seq., within the limits of the payee=s legal authority;
2.6.6. A surrogate decision-maker appointed pursuant to the West Virginia Health Care Surrogate Act, W. Va. Code §§16-30B-1, et seq., or the West Virginia Do Not Resuscitate Act, §§16-30C-1, et seq., within the limits set by the appointment;
2.6.7. An attorney in fact appointed with power of attorney under common law or pursuant to uniform durable power of attorney, W. Va. Code §§39-4-1, et seq., within the limits set by the appointment; or
2.6.8. An individual lawfully appointed in a similar or like relationship of responsibility for a resident under the laws of this state, or another state or legal jurisdiction, within the limits of the applicable statute and appointing authority; and
2.6.9. Who has no financial ties to the legally unlicensed health care home.
2.7. Legally unlicensed health care home, unlicensed home, or home. -- Any place in this state in which a service provider provides accommodations and personal assistance, whether for compensation or not, for a period of more than 24 hours, to one to three residents who are not related to the service provider or his or her spouse by blood or marriage within the degree of consanguinity of second cousin. These residents may be dependent upon the services of others by reason of physical or mental impairment or may require limited and intermittent nursing care, including those individuals who qualify for and are receiving services coordinated by a licensed hospice.
2.8. Licensed health care professional. -- Any health care professional currently licensed in West Virginia such as, but not limited to a: social worker, dentist, practical nurse, occupational therapist, physician, physician assistant, psychologist, registered professional nurse, or speech-language pathologist.
2.9. Limited and Intermittent Nursing Care. -- Direct hands-on nursing care of an individual who needs no more than two hours of nursing care per day for a period of no longer than 90 consecutive days per episode. Limited and intermittent nursing care shall be provided under the supervision of a registered professional nurse and in accordance with this rule, and may only be provided when the need for such care meets the following factors:
2.9.1. The resident requests to remain in the home;
2.9.2. The resident is advised of the availability of other specialized health care facilities to treat his or her condition; and
2.9.3. The need for such care is the result of a medical pathology or a result of the normal aging process.
2.10. Neglect. -- Failure to provide for the necessities of daily living or the lack or care for significant medical problems.
2.11. Nursing Care. -- Those procedures commonly employed in providing for the physical, emotional, and rehabilitation needs of the ill or otherwise incapacitated which require technical skills and knowledge beyond that which the untrained person possesses, including, but not limited to, such procedures as; irrigations; catheterization; special procedures contributing to rehabilitation; and administration of medication by any method prescribed by a physician which involves a level of complexity and skill in administration not possessed by the untrained person.
2.12. Office of Health Facility Licensure and Certification. – The West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
2.13. Ongoing Nursing Care. -- The nursing care required when a deviation in health is expected to continue over a lengthy period or time (i.e., in excess of 90 days) with minimal or no improvement.
2.14. Personal Assistance. -- Personal services, including, but not limited to, the following: help in walking, bathing, dressing, feeding, getting in and out of bed, or supervision required because of the age or physical or mental impairment of the resident.
2.15. Physical Restraint. -- A device which physically limits, restricts, or deprives an individual of movement or mobility.
2.16. Resident. -- An individual who is provided services, whether or not for a fee, by a service provider, but resident does not include a person receiving services provided by another who is related to him or her or the spouse thereof by blood or marriage, within the degree of consanguinity of the second cousin.
2.17. Self-preservation. -- The capability of, at least, removing one’s physical self from situations involving imminent danger, such as fire.
2.18. Service Provider or provider. -- The individual administratively responsible for operating a legally unlicensed home.
W. Va. Code R. § 71-22-3 State Administrative Procedures
3.1. General registration provisions.
3.1.1. A person administering an unlicensed home shall register with the director as a service provider.
3.1.2. A registration is valid only for the individual submitting the application for registration and for the structure named in the application. The registration is not transferable or assignable.
3.1.3. The words, “clinic”, “hospital”, “nursing home”, “personal care home”, “residential board and care home”, or any other words which suggest a type of facility other than an unlicensed home, shall not be used in the name of the home or in any of the home’s advertising. The provider shall notify the director of any change in the name of the home.
3.1.4. A service provider shall operate no more than one legally unlicensed home and shall notify the director if the location of his or her administration of services is changed.
3.1.5. A service provider shall:
3.1.5.a. Provide residents at the time of admission with the name, address and telephone number of the Office of Health Facility Licensure and Certification, the state long-term care ombudsman, and adult protective services; and
3.1.5.b. Advise residents both orally and in writing of their right to file a complaint with those offices.
3.1.6. Applicants for initial registration as a service provider shall complete and sign a form provided by the director and submit the form to the Office of Health Facility Licensure and Certification.
3.2. Complaint investigations.
3.2.1. Any person may register a complaint with the Director alleging a violation or violations of this rule by a service provider. The complainant shall state the substance of the complaint and identify the home or building by name or address and the name, if known, of the service provider.
3.2.2. The Director may conduct investigations as necessary to determine the validity of the complaint and shall notify the service provider of the substance of the complaint at the time of the completion of any investigation.
3.2.3. The Director shall issue to the service provider directed plans of correction for the deficiencies identified by any investigation or inspection, which specify time frame for correction and any disciplinary action to be taken by the Director.
3.2.4. The Director shall keep confidential the names of complainants and residents named in complaints unless written permission is granted by the complainant to disclose his or her name and unless written permission is granted by the resident or his or her legal representative to disclose the resident’s name. If a complaint becomes the subject of a judicial proceeding, nothing in this rule shall be construed to prohibit the disclosure of information which would otherwise be disclosed in judicial proceedings.
3.2.5. If a resident of a legally unlicensed home administered by a service provider files a complaint with the director, or if a complaint is filed on his or her behalf, his or her receipt of any type of discriminatory treatment within 120 days of the filing, raises a rebuttable presumption that the treatment was taken by or under the administration of the service provider in retaliation for such complaint.
3.2.6. If, after an investigation, the Director determines that the complaint has merit, he or she shall advise any injured party of the possibility of a civil remedy. In addition, residents, residents’ families or legal representatives or ombudsmen may also pursue independently in court remedies for violations of this rule.
3.2.7. If a service provider who is found to have violated one or more requirements of this rule during a complaint investigation fails to correct the violations within 120 days of the completion of the investigation, the Director shall report to the Social Security Administration the service provider’s lack of compliance with this rule and the address of the home administered by the service provider. The Director shall also provide all residents with a list of licensed health care facilities and state agencies to assist them with moving.
3.2.8. The Director may order the closure of a home for failure to correct deficiencies in accordance with the directed plan of corrections.
W. Va. Code R. § 71-22-4 Administration of the Legally Unlicensed Home
4.1. In administering an unlicensed home, a service provider shall assure compliance of the home with this rule and any applicable state and local laws and rules.
4.2. The service provider or a responsible individual shall be available for resident assistance in the home at all times.
4.3. Any information pertaining to residents shall be retained at the home in a secure area. The Director shall be provided with access to the information during an inspection.
4.4. In an unlicensed home administered by a service provider, the service provider, household members, exclusive of residents, and all care givers shall have a personal history which is free of: evidence of abuse, neglect, fraud, or substantial and repeated violations of applicable laws and rules in the operation of any health or social care facility or service organization, or in the care of dependent persons; and conviction of crimes relevant for the provision of care to a dependent population as evidenced by an eligibility determination from West Virginia Clearance for Access: Registry and Employment Screening subject to the provisions of W. Va. Code §§16B-15-1, et seq., and W. Va. Code R. §§71-11-1, et seq.
W. Va. Code R. § 71-22-5 Physical Environmental Requirements
5.1. The unlicensed home shall have electric power and have hot and cold running water adequate to meet the needs of the residents, household members and employees.
5.2. Services utilizing equipment which requires auxiliary electrical power shall not be used unless the home has a backup power generator.
5.3. The interior, exterior and grounds of the home shall be maintained in a clean, safe and sanitary condition, and the home shall be in good repair.
5.4. No smoking or open flames shall be allowed in a room where oxygen is being used or stored.
5.5. A separate bed shall be provided for each resident, for their own use, in a bedroom. In addition, a chair, reading light and appropriate clothing space shall be available in the home for each resident.
W. Va. Code R. § 71-22-6 Nutrition Requirements
6.1. Each resident shall be offered at least three meals daily, seven days a week and special diets and snacks that provide nutrients and calories to meet the resident’s needs and choices and to maintain his or her normal weight.
6.2. Therapeutic or modified diets, as recommended by the resident’s physician, shall be prepared according to written instructions obtained from the resident’s physician or dietitian.
6.3. The service provider shall maintain a daily record of actual foods served for each meal. The meal content shall be varied.
W. Va. Code R. § 71-22-7 Requirements Related to the Provision of Limited and Intermittent Nursing
7.1. The service provider shall arrange for a registered professional nurse to supervise limited and intermittent nursing care to residents needing that type of care.
7.2. A service provider shall not accept as a resident a person who is in need of extensive or ongoing nursing care and shall arrange for the transfer to an appropriate health care facility of a resident needing that type of care.
7.3. The service provider shall provide adequate nursing support staff to ensure appropriate nursing care outcomes. Nursing support staff shall be under the supervision of the registered professional nurse who has assumed supervision for the limited and intermittent nursing care provided to the residents.
7.4. The service provider shall implement, within reasonable expectations, the recommendations of the registered nurse regarding limited and intermittent nursing care and staff training intended to protect the residents requiring that type of care.
7.5. The service provider shall assure that treatment involving medical management of a resident is carried out only in accordance with an order from a physician or other lawfully authorized health care professional. No medication, diet, medical procedure or treatment shall be started, changed or discontinued by the service provider without an order by a lawfully authorized health care professional.
W. Va. Code R. § 71-22-8 Medication Administration Requirements
8.1. The service provider shall make provisions for the administration or self-administration of medicines and drugs according to physician orders in compliance with applicable state laws.
8.2. The container label of each prescription drug shall be legible, legally dispensed and labeled for the resident for whom it has been prescribed. When the prescriber’s directions change, the container shall be relabeled by a licensed pharmacist or there shall be a written document signed and dated by the physician to verify the change in a medication prescription. All medications shall be kept in their original labeled containers and shall be labeled in accordance with the rules of the West Virginia board of pharmacy and in a manner that the name and strength of medication, manufacturer name, lot number, and expiration date can be readily identified.
8.3. All medications shall be kept in a locked cabinet or other storage receptacle and accessible only to the staff responsible for medications.
W. Va. Code R. § 71-22-9 Protective and Personal Care Requirements
9.1. The service provider shall provide the residents with personal services to meet their needs, including but not limited to, self-administration of medically prescribed drugs and treatments; any planned diet, rest or activity regimen; access to their functional equipment (e.g., hearing aids, glasses, canes); and activities of daily living.
9.2. Residents who are incapable of self-preservation shall only be housed on a floor that has direct ground level egress through a door to the outside.
9.3. Physical restraints may be used only if all the following conditions are present:
9.3.1. The restraints are used under a physician’s order;
9.3.2. The restraints are used in an emergency for the safety of the resident or others;
9.3.3. The restraints are applied only by staff who have been trained in their use;
9.3.4. The restraints are cloth vests or soft belts;
9.3.5. The restraints are released every two hours for at least 10 minutes;
9.3.6. Professional help is called; and
9.3.7. The restraints are only used until professional help arrives, in no case exceeding 24 hours.
9.4. A resident’s family, legal representative and physician shall be notified of any deviation from the resident’s normal appearance, state of health or well-being. A resident’s physician shall be notified of any major incident or significant change in the resident’s condition, and the change shall be documented in the resident’s record.
W. Va. Code R. § 71-22-10 Treatment
10.1. Residents shall be treated with respect and dignity and retain their rights protected by the state of West Virginia and the United States.
10.2. If a legal representative has been appointed for or designated by any resident as having the authority to exercise on behalf of the resident one or more of the resident’s rights under this rule, the service provider shall afford the legal representative full opportunity to exercise the authority. If the appointed or designated legal representative exercises this authority, he or she shall do so in a manner consistent with all applicable state and federal laws. The service provider or any individual who has financial ties to the legally unlicensed health care home shall not serve as any resident’s legal representative.
10.3. No resident shall be restrained, or experience interference, coercion, discrimination, or reprisal from the service provider or those under his or her influence for exercising his or her rights.
10.4. Residents have the right to voice grievances with respect to treatment or care furnished without discrimination or reprisal for voicing the grievance.
10.5. A resident has the right to receive visitors. Relatives and members of the clergy may visit at any time with the consent of the resident. Any entity or individual that provides health, social, legal or other services to a resident shall be permitted access to the resident subject to the resident’s right to deny or withdraw consent at any time.
10.6. The resident has the right to receive information from agencies acting as client advocates, such as the state’s long term care ombudsman program, and to be afforded the opportunity to contact these agencies.
10.7. The resident has the right to participate in planning his or her overall care, to utilize the physician of his or her choice, and to be fully informed in advance about care and treatment that may affect him or her.
W. Va. Code R. § 71-22-11 Penalties
11.1. Penalties are as provided in W. Va. Code §16B-6-6.
W. Va. Code R. § 71-22-12 Administrative Due Process
12.1. Administrative due process and remedies for actions taken under this rule are set forth in the Office of Inspector General Procedural Rule, Rules of Procedure for Contested Case Hearings and Declaratory Rulings, W. Va. Code §§64-1-1, et seq., and W. Va. Code §§29A-4-1, et seq., and §§29A-5-1, et seq.
Series 23 Residential Care Communities
W. Va. Code R. § 71-23-1 General
1.1. Scope. -- This legislative rule prescribes specific standards and procedures to provide for the health, safety, and protection of the rights and dignity of residents of residential care communities. This rule must be read in conjunction with W. Va. Code §§16B-9-1, et seq., to determine the complete requirements for licensing, regulation, and complaint investigations of residential care communities.
1.2. Authority. -- W. Va. Code §16B-9-3(k) and §16-9-5.
1.3. Filing Date. – May 28, 2025.
1.4. Effective Date. – May 28, 2025.
1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2030.
W. Va. Code R. § 71-23-2 Application and Enforcement
2.1. Application. -- This rule applies to any person, and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association or political subdivision of this state establishing, maintaining or operating a residential care community as defined in W. Va. Code §§16B-9-1, et seq., and this rule: Provided, That this rule does not apply to homes or asylums operated by fraternal orders pursuant to W. Va. Code §§35-3-1, et seq.
2.2. Enforcement. -- This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-23-3 Definitions
3.1. Abuse. -- Mistreatment of residents, including physical bodily harm, misuse of physical or chemical restraints, verbal abuse, and infliction of emotional suffering.
3.2. Activities of daily living. -- The activities that individuals generally perform regularly in the course of maintaining their physical selves, such as eating, dressing, oral hygiene, toileting, personal grooming, and moving themselves from one location to another, such as, for example, in moving from a bed to a chair, or from one room to another.
3.3. Administration of medications. -- Opening a container of medication and giving the medication to the person for whom it is prescribed, including giving injections and administering eye drops.
3.4. Administrator. -- The owner or individual selected by the licensee to be responsible for the day-to-day operation of the residential care community.
3.5. Adult day care. - An alternative to 24-hour institutional care for elderly or disabled adults who need care and supervision not to exceed 14 hours a day.
3.6. Apartment and resident capacity. -- The number of apartments and residents for which a residential care community is licensed to provide care.
3.7. Bedfast. -- The condition of individuals who are restricted to a bed or chair for a prolonged or indefinite period of time and have limited ability to move or turn themselves while in bed or remove themselves from a chair. These individuals are therefore susceptible to physical and psychological complications of immobilization and are incapable of self-preservation. An individual for whom a physician has prescribed bed rest because of a short-term illness (e.g., cold, flu, viruses, etc.) is not considered bedfast.
3.8. Behavioral Health Services. -- Those services intended to help individuals with emotional or mental disorders, alcohol or drug abuse problems, or mental retardation and other developmental disabilities, to gain or regain the capacity to function adaptively in their environment, to care for themselves and their families, and to be accepted by society.
3.9. Chemical restraint. -- A psychoactive drug that is used for discipline or convenience and is not required to treat medical symptoms.
3.10. Communicable disease. -- An illness due to an infectious agent or its toxic product, which is transmitted, directly or indirectly, to a susceptible host from an infected person or animal, or through the agency of an intermediate host or a vector or through the inanimate environment.
3.11. Developmental disorder. -- A group of disorders in which the predominant disturbance is in the acquisition of cognitive, language, motor, or social skills. The disturbance may involve a general delay, as in mental retardation, or a delay or failure to progress in a specific area of skill acquisition or multiple areas in which there are qualitative distortions of normal development. The course of developmental disorders tends to be chronic, with some of the signs of the disorder persisting in a stable form, without periods of remission or exacerbation, into adult life.
3.12. Director. – The Director of the Office of Health Facility Licensure and Certification, or his or her designee.
3.13. Disability. -- Any limitation of physical, mental, or social activity of an individual as compared with other individuals of similar age, sex, and occupation. Frequently refers to limitations of the usual or major activities, most commonly vocational. There are varying types (functional, vocational, learning), degrees (partial, total), and durations (temporary, permanent) of disability.
3.14. Exploitation. -- The act or process of taking unjust advantage of another for one’s own benefit.
3.15. Extensive nursing care. -- The nursing care required when there is a major deviation from normal in a body system or multiple body systems, of such magnitude that the deviations are life threatening, and the individual’s condition is unstable and unpredictable.
3.16. Functional needs assessment. - Any measurement tool that identifies for the resident and the licensee those services that will need to be obtained or provided for the resident in order to promote the resident’s health, wellness, comfort, dignity and independence.
3.17. Immediate and serious threat. -- A situation that presents a high probability of serious harm or injury to one or more residents. An immediate or serious threat need not result in actual harm to any resident.
3.18. Imminent danger. -- As applied to a violation of this rule, a danger which could reasonably be expected to immediately cause or contribute to death, serious physical harm or illness to residents, household members or staff, before the threat can be eliminated through the plan of correction process of this rule.
3.19. Inspector General. – The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1, or his or her designee.
3.20. Legal representative. --
3.20.1. A conservator, temporary conservator or limited conservator appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code, §§44A-1-1, et seq., within the limits set by the order;
3.20.2. A guardian, temporary guardian or limited guardian appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code, §§44A-1-1, et seq., within the limits set by the order;
3.20.3. An individual appointed as committee or guardian prior to June 9, 1994, within the limits set by the appointing order and W. Va. Code §44A-1-2(d);
3.20.4. An individual having a medical power of attorney pursuant to the West Virginia Medical Power of Attorney Act, W. Va. Code §§16-30A-1, et seq., within the limits set by the law and the appointment;
3.20.5. A representative payee under the U.S. Social Security Act, Title 42 U.S.C. §§ 301, et seq., within the limits of the payee's legal authority;
3.20.6. A surrogate decision-maker appointed pursuant to the West Virginia Health Care Surrogate Act, W. Va. Code §§16-30B-1, et seq., or the West Virginia Do Not Resuscitate Act, §§16-30C-1, et seq., within the limits set by the appointment; or
3.20.7. An attorney in fact appointed with power of attorney under common law or pursuant to Uniform Durable Power of Attorney, W. Va. Code §§39-4-1, et seq., within the limits set by the appointment; or
3.20.8. An individual lawfully appointed in a similar or like relationship of responsibility for a resident under the laws of this state, or another state or legal jurisdiction, within the limits of the applicable statute and appointing authority, and who has no financial ties to the residential care community.
3.21. Licensed health care professional. -- Any health care professional currently licensed in West Virginia such as, but not limited, to a social worker, dentist, practical nurse, occupational therapist, pharmacist, physical therapist, physician, physician assistant, psychologist, registered professional nurse, or speech-language pathologist.
3.22. Life care contract. -- A contract between the licensee and an individual in which the licensee agrees to provide long-term residential care for the individual for the remainder of the individual's life, regardless of the level of care needed by the individual.
3.23. Major incident. -- An event or occurrence, the outcome of which places one or more residents' health and well-being in jeopardy or imminent danger, as for example: a fall, accident or other event which seriously injures or threatens the life of the resident; a resident death occurring from other than natural causes; a missing resident who is likely to injure himself or herself or who needs medication or treatment on a regular basis and who is likely to have difficulty returning to the residential care community on his or her own; assaults on a resident resulting in injury; or events which cause the disruption of normal residential care community activity, such as threats or occurrences of extreme violence, explosions, fire or natural disasters.
3.24. Mental disorder. -- A mental illness that affects the well-being or behavior of an individual to such an extent that for his or her own welfare or the welfare of others, he or she requires treatment.
3.25. Neglect. -- Failure to provide for the necessities of daily living or the lack of care for significant medical problems.
3.26. Nursing care and nursing services. -- Those procedures commonly employed in providing for the physical, emotional and rehabilitation needs of the ill or otherwise incapacitated which require technical skills and knowledge beyond that which the untrained person possesses, including, but not limited to, such procedures as irrigations, care of decubitus ulcers, catheterizations, special procedures contributing to rehabilitation and administration of medication by any method which involves a level of complexity and skill in administration not possessed by the untrained person.
3.27. Nursing support staff. -- Registered professional nurses, practical nurses, and nursing assistants employed by the licensee to provide direct hands-on nursing services to residents.
3.28. Office of Health Facility Licensure and Certification. – The West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
3.29. Ongoing nursing care. -- The nursing care required when a deviation in health is expected to continue over a lengthy period of time, i.e., in excess of 90 days, with minimal or no improvement.
3.30. Personal assistance. -- Personal services, including, but not limited to the following: help in walking, bathing, dressing, feeding, getting in or out of bed, or supervision required because of the age or mental impairment of the resident.
3.31. Physical restraint. -- A device which physically limits, restricts, or deprives an individual of movement or mobility.
3.32. Registered long term care nursing assistant. -- Any individual who has met the requirements for entry in the long-term care nursing assistant registry, established under the requirements of 42 CFR § 483.150, § 483.152 through § 483.154, related to nurse aide training.
3.33. Restorative care. -- Care directed toward assisting a resident to achieve and maintain an optimal level of self-care and independence and providing assistance to residents in learning or relearning skills needed in everyday activities.
3.34. Self-administration of medications. -- The act of a resident, who is independently capable of reading and understanding the labels of drugs ordered by a physician, in opening and accessing prepackaged drug containers, accurately identifying and taking the correct dosage of the drugs as ordered by the physician, at the correct time and under the correct circumstances.
3.35. Self-preservation. -- The capability of, at least, removing one's physical self from situations involving imminent danger, such as fire.
3.36. Service plan. -- A written description of the services being provided to the residents to meet all of the needs identified in his or her functional needs assessment.
3.37. Supervision. -- The assumption of varying degrees of responsibility for the safety and well-being of residents including, but not limited, to the following: knowing the resident's location to the extent identified as a need by the resident functional needs assessment; monitoring through observation the activities of the resident while on the premises of the residential care community to ensure his or her health, safety and well-being; reminding the resident of any important activities of daily living and prescribed medication; purchasing of food and other supplies; meeting nutritional needs; arranging for or providing transportation as necessary; and other similar activities.
3.38. Supervision of self-administered medications. -- A personal service which includes reminding residents to take medication, opening medication containers for residents, reading the medication label to residents, observing residents while they take medication, checking the self-administered dose against the label on the container, and reassuring residents that they have obtained and are taking the dosage as prescribed.
W. Va. Code R. § 71-23-4 State Administrative Procedures
4.1. General licensing provisions.
4.1.1. A person establishing, maintaining, offering, operating or advertising a residential care community shall obtain from the Director a license authorizing the operation, which license remains unsuspended, unrevoked and unexpired.
4.1.2. A license is valid only for the licensee and for the structure named in the application and identified on the license. Separate buildings on the same premises operated as residential care communities require separate licenses. The license is not transferable or assignable. The license shall be surrendered to the Director upon written demand, or immediately, when the residential care community ceases provision of services.
4.1.3. Neither the name of the residential care community nor the residential care community's advertising shall use the words "clinic”, "hospital”, "nursing home”, "personal care home", or any other words which suggest a type of facility other than a residential care community. If the licensee owns more than one residential care community, each residential care community shall have a separate identification. The licensee shall notify the Director of any change in the name of the residential care community.
4.1.4. Residential care communities which have residents who need limited and intermittent nursing care shall comply with section 12 of this rule in addition to all other requirements of this rule.
4.1.5. The licensee is responsible for compliance with this rule, the terms of the residential care community's license; W. Va. Code §§16B-9-1, et seq.; other relevant federal, state or local laws and regulations; and with the residential care community's policies.
4.1.6. A licensee shall not rent, lease or use the premises for any purpose that disrupts the activities of the residents.
4.1.7. A residential care community that intends to provide adult day care shall notify the Director of the number of individuals it plans to serve in addition to the residential care community census. The Director shall approve the provision of day care for the number of individuals identified based on space, accommodations and staffing before day care residents are accepted. Individuals being provided with this service shall have health screening as required for residential care community residents and shall be capable of self-preservation.
4.1.8. A licensee shall not advertise, assert, represent or otherwise imply in any manner that it may render care or services other than those specifically identified within the scope of its license.
4.1.9. The Director may issue an initial or a renewal license for a period not to exceed one year: Provided, That if an applicant timely submits, in conformance with this rule and W. Va. Code §§16B-9-1, et seq., an application for renewal of a license currently in effect, together with payment of the proper fee, the license shall continue in effect until;
4.1.9.a. One year following the expiration date of the license;
4.1.9.b. The date of the revocation or suspension of the license pursuant to this rule and W. Va. Code §§16B-9-1, et seq.; or
4.1.9.c. The date of issuance of a new license, whichever date occurs first.
4.2. Initial License.
4.2.1. Applicants for initial licensure as a residential care community shall submit their applications to the office of health facility licensure and certification of the West Virginia department of health and human resources. Pursuant to W. Va. Code §16B-9-6(a), the application shall include the following information:
4.2.1.a. The name and address of the applicant;
4.2.1.b. The name, address and principal occupation:
4.2.1.b.1. Of each person who, as a stockholder or otherwise, has a proprietary interest of 10% or more in the applicant;
4.2.1.b.2. Of each officer and director of a corporate applicant; and
4.2.1.b.3. Of each trustee and beneficiary of an applicant which is a trust; and where a corporation has a proprietary interest of 25% or more in an applicant, the name, address and principal occupation of each officer and director of the corporation;
4.2.1.c. The name and address of the owner of the premises of the residential care community or proposed residential care community, if he or she is a different person from the applicant, and in that case, the name and address:
4.2.1.c.1. Of each person who, as a stockholder or otherwise, has a proprietary interest of 10% or more in the owner of the premises of the residential care community or proposed residential care community;
4.2.1.c.2. Of each officer and director of a corporate applicant; and
4.2.1.c.3. Of each trustee and beneficiary of the owner of the premises of the residential care community or proposed residential care community if he or she is a trust; and, where a corporation has a proprietary interest of 25% or more in the owner of the premises of the residential care community or proposed residential care community, the name and address of each officer and director of the corporation;
4.2.1.d. Where the applicant is the lessee or the assignee of the residential care community or the premises of the proposed residential care community, a signed copy of the lease and any assignment of the lease;
4.2.1.e. The name and address of the residential care community or the premises of the proposed residential care community;
4.2.1.f. The proposed bed quota of the residential care community and the proposed bed quota of each unit of the residential care community;
4.2.1.g. A list of the residential care community’s employee positions and the duties of each position;
4.2.1.h. The name and address of the individual who is to serve as administrator;
4.2.1.i. Evidence of compliance with applicable laws and rules governing zoning, buildings, safety, fire prevention and sanitation as required by this rule; and
4.2.1.j. Documentation that the licensee has made provisions in policy to ensure the continuing care of all residents for the 30-day period after notification of a pending closure. Any expenses incurred by the Office of Health Facility Licensure and Certification to provide continuing resident care (i.e., food, staff, etc.) during this 30-day period, are the responsibility of the owner.
4.2.2. The application shall be on forms provided by the Director and shall bear the notarized signature of the applicant. The signature on the application and accompanying forms serves as a release for obtaining references, credit and other background information. The application shall be accompanied by a non-refundable license fee in the amount shown on the form as established pursuant to W. Va. Code §16B-9-6(e). The fee shall be in the form of a check or money order payable to the Office of Health Facility Licensure and Certification. The Director shall not review incomplete forms; they shall be returned to the applicant. The applicant shall provide the Director with a balance sheet showing all expenses and all income on forms provided by the Director, including but not limited to, reimbursement of the owners, lease payment, and monthly rates charged. As mandated by W. Va. Code §16B-9-6(e), the applicant bears the cost of the initial licensure inspections or inspections for changes in licensed bed capacity. An applicant shall pay the fee to the Office of Health Facility Licensure and Certification before the issuance of an initial or amended license.
4.2.3. Applicants for initial licensure shall provide to the Director a preliminary operating plan which shall include a proposed budget that projects monthly income, lease payment and reimbursement of the owners.
4.2.4. The applicant shall submit the application and fee at least 90 days prior to the date proposed for commencement of operations.
4.2.5. Except as specified in section 4.11. of this rule, the Director shall, after inspection, issue an initial license, if the applicant complies with this rule.
4.2.6. If any residents of a residential care community are to be moved to another location owned or operated by the same licensee, the licensee shall apply for a license for the new location at least 90 days in advance of the move.
4.3. Waivers.
4.3.1. The Director, in consultation with the Inspector General, may waive the requirements of this rule if after a thorough investigation, the Director determines that the waiver will not adversely affect the health, safety, welfare or rights of the residents.
4.3.2. In order to request a waiver, the licensee or resident shall submit a written request for the waiver at least 30 days in advance of the date on which the waiver is requested to begin. The request shall:
4.3.2.a. Specify the specific requirement in this rule for which the waiver is requested;
4.3.2.b. Specify the time period for which the waiver is requested;
4.3.2.c. Include specific and detailed reasons for the request;
4.3.2.d. Explain why the specific requirement cannot be complied with; and
4.3.2.e. Document that there will be no adverse effect on resident health, safety, welfare, or rights if the waiver is granted.
4.4. License Renewal.
4.4.1. Applications for renewal of a license shall be postmarked or hand delivered to the Director a minimum of 90 days prior to the expiration date appearing on the currently held license.
4.4.2. Except as specified in section 4.11. of this rule, the Director shall issue a renewal license when the following conditions are met:
4.4.2.a. The residential care community is found to be in substantial compliance with this rule;
4.4.2.b. The applicant has submitted a complete application and all requested documentation regarding financial capability and management of the residential care community; and
4.4.2.c. The residential care community has met all Class I standards as set forth in section 4.10. of this rule.
4.5. Provisional License.
4.5.1. The Director may issue a provisional license when:
4.5.1.a. The residential care community has failed to meet all the requirements of W. Va. Code §§16B-9-1, et seq., provided that care given in the residential care community is adequate for the residents’ needs and the residential care community has demonstrated improvement and evidences potential for substantial compliance during the term or the provisional license; or
4.5.1.b. All requirements for renewal of a license are not met prior to the expiration of the previously issued license.
4.5.2. The Director shall not issue a provisional license when the residential care community:
4.5.2.a. Is in violation of any Class I standard; or
4.5.2.b. Has a record of noncompliance with this rule.
4.5.3. The Director shall not renew a provisional license.
4.5.4. The Director shall determine the period of time for which a provisional license is issued. However, in no instance shall this period exceed one year.
4.5.5. If the owner of a residential care community is denied a provisional license or a provisional license expires, the Director shall treat a subsequent application for a license as application for an initial license and the owner shall meet the requirements for an initial license including the cost of an initial application fee and inspections as determined by the Director.
4.6. Inspections.
4.6.1. The Director shall inspect residential care communities as is necessary to carry out the intent of W. Va. Code §§16B-9-1, et seq., and this rule.
4.6.2. The Director has the right to enter, without prior notice, the premises of a residential care community, or any building for which there is reason to believe it is being operated or maintained as a residential care community without license, to conduct inspections. If the owner or person in charge of the residential care community refuses entry, the Inspector General may apply to the circuit court in which the residential care community is located or the circuit court of Kanawha County for a warrant to authorize an inspection or to compel admittance to the premises of an unlicensed residential care community.
4.6.3. The Director shall conduct at least one inspection of a residential care community prior to the issuance of an initial license. Inspections shall be conducted after the following conditions have been met:
4.6.3.a. The application and fee have been received and been determined to be complete;
4.6.3.b. All requested documentation verifies the readiness of the residential care community for an inspection;
4.6.3.c. Fees for the cost of inspections have been received by the Director; and
4.6.3.d. Necessary inspections can be scheduled.
4.6.4. The Director shall conduct periodic unannounced inspections to determine a residential care community's continued compliance with applicable statutes and rules.
4.6.5. The Director shall prepare a written report of any inspection made pursuant to this rule within 15 days of the completion of the inspection and shall mail a copy to the licensee or administrator, as applicable, specifically listing any violation of this rule.
4.7. Complaint Investigation.
4.7.1. Any person may register a complaint with the Director alleging a violation or violations of this rule by a residential care community or a facility alleged to be operating unlawfully as a residential care community. The complainant shall state the substance of the complaint and identify the residential care community by name and/or address.
4.7.2. The Director may conduct investigations as necessary to determine the validity of the complaint and shall notify the licensee of the residential care community or the operator of a facility alleged to be operating unlawfully as a residential care community of the substance of the complaint at the time of the completion of any investigation.
4.7.3. The Director shall notify the licensee of any corrective action required, the time frame for completion of the corrective action and any disciplinary action to be taken by the Director, in consultation with the Inspector General.
4.7.4. The Director shall keep the names of a complainant and of any resident named in the complaint confidential and shall not disclose the names to the public without written permission of the complainant and the resident and his or her legal representative, if any. The Director shall delete the name of a complainant or resident named in a complaint or information contained in the report of an investigation which could reasonably identify the complainant or any resident, unless the resident gives written permission for the disclosure or there is clear and convincing evidence in a particular instance which requires disclosure of names.
4.7.5. If a complaint becomes the subject of a judicial proceeding, nothing in this rule shall be construed to prohibit the disclosure of information that would otherwise be disclosed in judicial proceedings.
4.7.6. Any type of discriminatory treatment of a resident by whom, or upon whose behalf, a complaint has been submitted to the Director, within 120 days of the filing of the complaint or the institution of such action, raises a rebuttable presumption that the discriminatory treatment action was taken by the licensee in retaliation for the complaint or action.
4.7.7. If, after an investigation, the Director determines that the complaint has merit, he or she shall advise any injured party of the possibility of a civil remedy. In addition, residents, residents' families or legal representatives or ombudsmen may also independently pursue civil remedies for violations of this rule.
4.7.8. If a residential care community which is found to have violated one or more requirements of this rule during a routine inspection, or a complaint or other investigation fails to correct the violations within 120 days of the completion of the inspection or investigation, the Director shall give written notice of the uncorrected violations and of the amount of time until the Director will report the residential care community’s lack of compliance with the rule to the Social Security Administration and to all residents, their families and any legal representatives. The Director shall also provide all residents with a list of approved facilities and agencies to assist them in moving.
4.7.9. If a residential care community is found to have violated one or more requirements of this rule during a routine inspection or a complaint or other investigation fails to correct the violations within 210 days of the completion of the inspection or investigation, the Director shall report the residential care community's lack of compliance with this rule to the Social Security Administration. The Director shall also provide all residents, their families and any legal representatives with a list of approved facilities and agencies.
4.8. Plans of Correction.
4.8.1. The licensee of a residential care community found on the basis of inspection or other investigation to have violations of requirements in this rule shall develop a plan of correction which shall be signed and dated by the licensee and submitted to the Director within 15 working days of receipt of the report of the inspection or other investigation.
4.8.2. The Director shall require immediate correction in the case of a violation constituting immediate and serious threats to the health or safety of a resident or employee.
4.8.3. The plan of correction shall specify:
4.8.3.a. The violations to be corrected;
4.8.3.b. Action taken or proposed to correct the violations and procedures to prevent their recurrence; and
4.8.3.c. A calendar date by which the violations shall be corrected, which shall allow the shortest possible time in which the residential care community may reasonably be expected to correct the violation. A residential care community shall ordinarily be expected to comply with the rule within 60 days of the inspection; however, the Director may allow more time for certain types of deficiencies.
4.8.4. The plan of correction shall be approved, modified or rejected in whole or in part by the Director in writing.
4.8.5. In modifying or rejecting a proposed plan of correction, the Director shall state the reasons for the modification or rejection.
4.8.6. When the Director rejects a plan of correction, the licensee has a reasonable amount of time, but no more than 15 working days, to submit a revised plan.
4.8.7. The Director may conduct reasonable and necessary procedures, including a follow-up on-site inspection, to verify the correction of any violations identified during an inspection or any other investigation.
4.9. Release of Reports and Records.
4.9.1. The Director, from the time of receipt, shall make available for public inspection, and upon request, provide copies of the following at a reasonable cost:
4.9.1.a. Information concerning and actual applications and exhibits;
4.9.1.b. Inspection reports;
4.9.1.c. Reports on the results of investigations conducted in response to complaints;
4.9.1.d. A current list of the names and addresses of residential care communities found to be in violation of this rule, including the details of each violation; and
4.9.1.e. Any other reports filed with or issued by the Director pertaining to the compliance of a residential care community with applicable laws and rules.
4.9.2. The names of residents shall be kept confidential and shall not be disclosed without the residents’ written permission or by order of court of record. Nothing contained in this rule shall be construed to require or permit the public disclosure of confidential medical, social, personal or financial records of any resident. Before releasing a report or record judged public information, the Director shall delete any confidential information regarding a resident which would reasonably permit identification of the resident.
4.10. Classification of Standards.
4.10.1. In accordance with W. Va. Code §16B-9-5(c), a classification for each standard in this rule is established according to the following:
4.10.1.a. Class I standards are those the violation of which would present either an imminent danger to the health, safety or welfare of any resident or substantial probability that death or serious physical harm would result;
4.10.1.b. Class II standards are those the violation of which would have a direct or immediate relationship to the health, safety or welfare of any resident but which would not create imminent danger; and
4.10.1.c. Class III standards are those the violation of which would have an indirect or potential impact on the health, safety or welfare of any resident.
4.11. Non-Issuance of Initial or Renewal License.
4.11.1. The Director may refuse to issue either an initial or a renewal license if he or she finds evidence of the following:
4.11.1.a. Lack of financial stability to operate, such as insufficient capital, delinquent accounts, checks returned because of insufficient funds, and nonpayment of taxes, utility expenses and other essential services;
4.11.1.b. Either the applicant or the administrator has been arrested for, adjudicated, and convicted of any felony or misdemeanor relevant to the provision of care in a health care facility or operating a health care facility;
4.11.1.c. The applicant has been denied or has had a license to operate a health care facility revoked in West Virginia or any other jurisdiction during the previous five years;
4.11.1.d. The applicant has a record of noncompliance with lawful orders of the Office of Health Facility Licensure and Certification or other licensing or certification agency for any jurisdiction in which the applicant has operated, directed or participated in the operation of a health care facility;
4.11.1.e. The owner or person in charge of the residential care community has refused entry to the Director’s duly authorized representative for an inspection or survey;
4.11.1.f. The licensee has inappropriately converted for its own use the property of a resident;
4.11.1.g. The licensee has secured property, or a bequest of property, from a resident by undue influence;
4.11.1.h. The licensee has submitted false information either on the licensure or renewal application forms or during the course of an inspection or survey of the residential care community; or
4.11.1.i. In the instance of an application for a renewal license, the licensee has failed to correct a violation of any Class I standard or has failed to be in substantial compliance with the requirements of this rule.
4.11.2. The Director, in consultation with the Inspector General, shall consider all available evidence at the time of the determination, including the history of the residential care community and the applicant in complying with this rule, notices of violations which have been issued to the residential care community and the applicant, findings of surveys and inspections, and any evidence provided by the licensee, residents, law enforcement officials, and other interested individuals.
W. Va. Code R. § 71-23-5 Administrative, Staffing, and Personnel Requirements
5.1. General Administrative Requirements.
5.1.1. The licensee shall, in consultation with a licensed health care professional, establish and adopt written policies and procedures, which are consistent with this rule and specific to the residential care community, governing the care and safety of residents ( i.e., notification of a resident's family, legal representative and physician regarding any apparent significant deviations from the resident's normal condition; administration of medications and treatments, disposal of outdated or discontinued medications in accordance with applicable State and federal laws, assistance with activities of daily living, the provision of limited and intermittent nursing care if applicable, infection control, admission, discharge and transfer of residents, and release of information from resident records). Policies and procedures will be developed by the residential care community governing the protection of residents' personal property (i.e., periodic inventories of each resident's personal possessions) and rights, the operation of the residential care community, the services provided by the residential care community, emergency procedures and disaster plan, complaint procedures, and all other policies and procedures required by this rule. (Class III)
5.1.2. Policies and procedures shall be in writing, signed and dated by the administrator at the time of adoption and kept current with changes indicated by a dated signature of the administrator. (Class III)
5.1.3. A copy of each policy and procedure shall be available for inspection on request by employees, residents and the general public. (Class III)
5.1.4. The residential care community shall have written rules governing resident behavior and responsibilities as follows: smoking; alcohol consumption; visitation; recreational activities (including television); laundry; and the use and storage of personal belongings such as furnishings and clothing. House rules may not be inconsistent with this rule. (Class III)
5.1.5. Those residential care communities that provide limited and intermittent nursing care shall comply with the requirements established in Section 12 of this rule. (Class I)
5.1.6. The licensee shall not manage the personal finances or funds of its residents. The licensee shall not serve as a resident’s legal representative. (Class III)
5.2. The Licensee.
5.2.1. The licensee is responsible for compliance with this rule; the terms of the residential care community's license; W. Va. Code §§16B-9-1, et seq.; other relevant federal, State or local laws and regulations; and with the residential care community's policies. (Class II)
5.2.2. The licensee shall:
5.2.2.a. Give evidence of financial responsibility; (Class III)
5.2.2.b. Protect the physical and mental well-being of the residents; (Class II)
5.2.2.c. Keep the records and make the reports required by this rule; (Class III) and
5.2.2.d. Meet the qualifications of the administrator if he or she assumes those duties. (Class III)
5.2.3. The licensee shall maintain fiscal records which accurately identify, summarize, and classify funds received and disbursed for the operation of the residential care community. A recognized system of accounting shall be used to accurately reflect details of the business. The residential care community shall be administered on a sound financial basis consistent with good business practices. Evidence of issuance of bad checks or accumulation of delinquent bills shall constitute prima facie evidence that the ownership lacks satisfactory proof of financial ability to operate the residential care community in accordance with the requirements of W. Va. Code §16B-9-6. (Class III)
5.2.4. The licensee shall maintain a liability insurance policy in an amount that will cover all injuries to any residents. (Class III)
5.2.5. The licensee shall notify the Director in writing within 10 days of any permanent change in the administrator of a residential care community. A licensee shall not operate a residential care community more than 30 days without a qualified administrator unless the Director grants an extension, based on a determination that a reasonable attempt has been made to find a suitable replacement. (Class III)
5.3. Administrator.
5.3.1. A residential care community shall have an administrator who is at least 21 years of age and has an associate degree, or its equivalent in a related field. (Class III)
5.3.2. The administrator of a residential care community shall have a personal history which does not contain the following: evidence of abuse, fraud, or substantial and repeated violations of applicable laws and rules in the operation of any health or social care facility or service organization, or in the care of dependent persons; and conviction of crimes relevant for the provision of care to a dependent population as evidenced by a criminal investigative background check. (Class II)
5.3.3. The administrator shall participate in 10 hours of training related to the administration and operation of a residential care community annually. Attendance records shall be maintained on file at the residential care community. (Class III)
5.3.4. The administrator is responsible and accountable for the development and execution of all policies and procedures required by this rule and shall be able to conform to applicable statutes, rules and regulations; know the requirements of the rule for residential care communities; and ensure the adequacy and appropriateness of services delivered to the residents. (Class II)
5.3.5. The administrator or a responsible employee, designated in writing, shall be available and in charge of the residential care community at all times. (Class III)
5.4. Employment Standards.
5.4.1. The residential care community shall have written personnel policies and procedures which appropriately meet the needs of the residential care community. (Class III)
5.4.2. The administrator shall assure that all staff of the residential care community meet the age requirements of applicable State and federal law, rules and regulations and are free from communicable disease in an infectious stage. (Class I)
5.5. Staffing Requirements.
5.5.1. Each residential care community shall have a minimum of one residential staff 24 hours per day (i.e., one per eight-hour shift) and shall have a sufficient number of qualified employees on duty to provide the residents with all of the care and services they require. (Class I)
5.5.2. Awake staff shall be present in the residential care community during normal resident sleeping hours when residents require supervision during sleeping hours or are in need of limited and intermittent nursing services unless all residents are certified by a physician or psychologist as not being in need of sleep time supervision and they are not in need of limited and intermittent nursing services. (Class I)
5.5.3. A multi-story residential care community shall maintain at least one awake staff per story while residents are sleeping, except that the Director shall permit one awake staff in a multi-story residential care community if:
5.5.3.a. The residents of the residential care community are certified by a physician or psychologist as not being in need of supervision during sleeping hours; (Class I)
5.5.3.b. The residential care community has no residents who are in need of limited and intermittent nursing services; (Class I) and
5.5.3.c. The residential care community has an immediate emergency call system from the residents to the awake staff person. (Class I)
5.5.4. The residential care community shall have the staff needed to meet the laundry, food service, housekeeping, and maintenance requirements of this rule. (Class II)
5.5.5. When regular staff and supervisory staff are absent due to illness and vacations, there shall be coverage by substitute personnel with comparable qualifications. (Class I)
5.5.6. The licensee of the residential care community shall maintain and furnish to the Director upon request, information setting forth the number (in full-time equivalents) and types of employees on duty in the residential care community at any given time. (Class III)
5.5.7. If a resident experiences a poor outcome related to a lack of supervision or unmet care needs, the Director may require the licensee to add staff. (Class II)
5.6. Employee Orientation and Training.
5.6.1. The licensee shall provide training for new employees within the first 24 hours of association with the residential care community in emergency procedures and disaster plans, including the following: evacuation procedures, procedures to report a missing resident, medical emergencies, accidents, fire, natural disasters or other emergencies. (Class II)
5.6.2. The licensee shall maintain a written plan of orientation and training for employees. The training shall be provided within the first 15 days of employment and shall include the following:
5.6.2.a. Policies and procedures; (Class III)
5.6.2.b. The rights and responsibilities of residents including protection of resident privacy and confidentiality; (Class III)
5.6.2.c. Complaint procedures; (Class III)
5.6.2.d. Procedures and agencies available in instances of abuse, neglect, and mistreatment: the State adult protective services agency, including its toll-free hot line number; the Office of Health Facility Licensure and Certification, including its telephone number; the state bureau of senior services, including its telephone number; and various other concerned advocacy and protection organizations; (Class III)
5.6.2.e. The care of aged, infirm or disabled adults with consideration for individual capabilities and needs; (Class III)
5.6.2.f. Personal assistance procedures as needed for resident care, including at a minimum, personal grooming care, personal hygiene care, nutritional services, and signs and symptoms of alteration in skin integrity; (Class III)
5.6.2.g. Specific duties and responsibilities of the residential staff for assisting current residents (i.e., a review of individualized service plans, the activities program and/or professionally designed intervention strategies to help a resident with behavioral health needs to manage his or her behavior); (Class III)
5.6.2.h. Cardiopulmonary resuscitation (CPR), as applicable, and first aid; (Class II) and
5.6.2.i. Infection control. (Class II)
5.6.3. The licensee may modify the initial orientation and training for individual employees if the individual is registered as a nurse aide and maintained as such on the nurse aide registry maintained by the Director. The registration satisfies the requirement for training in the areas of personal grooming, hygiene, assistance in feeding and activities of daily living. All other topics required by this rule shall be addressed in the employee's initial orientation and training program. This subdivision does not exclude individuals registered as nursing assistants from participation in annual ongoing in-service training. (Class III)
5.6.4. The licensee shall provide ongoing in-service training annually in these areas:
5.6.4.a. Resident rights and confidentiality; (Class III)
5.6.4.b. Abuse, neglect, mistreatment, and procedures to prevent the occurrence of those incidents; (Class II)
5.6.4.c. Emergency care of residents (first aid and as applicable, CPR) and emergency plans for the residential care community, including fire safety and evacuation plans; (Class II)
5.6.4.d. The responsibilities of the residential staff for assisting residents (i.e., individualized service plans, activity programs, etc.); (Class III) and
5.6.4.e. Infection control. (Class II)
5.7. Volunteers.
5.7.1. Volunteers rendering services in the residential care community shall adhere to the laws and rules governing confidential treatment of residents' personal information and provide evidence that they are free from communicable disease in an infectious stage. (Class II)
5.8. Personnel Records.
5.8.1. The licensee shall maintain a confidential personnel record on each employee, including the administrator, who provide services to residents. Each record shall contain at least the following:
5.8.1.a. An employment application which includes at least the individual's current home address and telephone number, emergency contacts, and social security number; (Class III)
5.8.1.b. Documentation of the results of a screening through the West Virginia state police central abuse registry regarding previous convictions involving abuse, mistreatment or neglect of dependent populations or theft of the property of those populations, documented verification of past employment or personal references, and a check of the nurse aide abuse and neglect registry established by the West Virginia Clearance for Access: Registry and Employment Screening, as evidenced by an eligibility determination from West Virginia Clearance for Access: Registry and Employment Screening, subject to the provisions of W. Va. Code §§16B-15-1, et seq., and W. Va. Code R. §§71-11-1, et seq.; (Class III)
5.8.1.c. A record of orientation, annual and/or additional training, education and credentials; (Class II)
5.8.1.d. The date of employment and a position title and description; (Class III); and
5.8.1.e. A health record containing the results of an employment physical examination and annual screens for tuberculosis (tine test not acceptable) and other communicable diseases as indicated by the Director regarding exposure, prevalence or currently accepted medical practice in congregate living situations. The employment physical and tuberculosis screening shall be obtained in the first week of employment and annually thereafter. (Class II)
5.8.2. Personnel records shall be maintained on file at the residential care community for at least three years following the employee’s termination of employment. The record shall have documentation of the date and reason for the employee’s termination of employment. (Class III)
5.9. Administrative Admission Procedures.
5.9.1. The licensee shall not discriminate against residents or a prospective resident on the basis of race, national origin, religion, age, gender, sexual orientation or disability. The admissions policy shall state the resident population that the residential care community is licensed to serve and shall not discriminate within the confines of that definition. (Class III)
5.9.2. The relationship of a resident to the residential care community shall be covered by a written contract entered into at the time of or prior to the individual's admission. The contract shall specify the following information:
5.9.2.a. The residential care community's admission, retention and discharge criteria; (Class III)
5.9.2.b. Written assurance of the services that the residential care community will provide to meet the individual's needs; (Class III)
5.9.2.c. Full disclosure of all costs, an annual or monthly contract price, refund policy and an assurance that residents shall not be held liable for any cost that was not disclosed; (Class III)
5.9.2.d. How health care will be arranged or provided; (Class III)
5.9.2.e. The complaint process; (Class III)
5.9.2.f. How prescribed medications are obtained, and who is responsible for payment; (Class III) and
5.9.2.g. The storage, administration and disposal of medications.
5.9.3. Each party to the contract shall have a copy of the contract. If a current resident’s existing contract does not meet the requirements of this rule, the resident shall be provided with a new or updated contract within 14 days of the effective date of this rule, (Class III)
5.9.4. Thirty days prior to any increases, additions, or other modifications of the rates, the licensee shall give written notice of the proposed changes to residents. (Class III)
5.9.5. The licensee shall inform and document notifying the resident of how to access the following information at the time of the agreement:
5.9.5.a. Information and referral services regarding the resident's utilization of social, recreational, and vocational activities within the residential care community;
5.9.5.b. How the resident's personal property will be protected from loss and theft;
5.9.5.c. How the residents will be assisted in making appointments for medical, dental, nursing or mental health services, and how transportation to and from these services will be arranged;
5.9.5.d. Policies and procedures for emergency situations that affect the well-being of residents, including, but not limited to the following: life-threatening medical emergencies (including whether CPR will be provided), fires, natural disasters, severely inclement weather, industrial accidents, major incidents, a missing resident and immediate or serious threats;
5.9.5.e. The responsibility for required medical examinations and treatment orders; policies regarding room changes, retention during temporary illness or a significant change in resident status, transfers and discharges, and the resident's and the licensee's transfer and discharge notification responsibilities;
5.9.5.f. House rules governing resident behavior and responsibilities; and
5.9.5.g. A resident's bill of rights which is consistent with this rule. (Class III)
W. Va. Code R. § 71-23-6 Resident Rights
6.1. Posting of Information and General Rights.
6.1.1. The licensee shall post the following information, easily readable, in a conspicuous place:
6.1.1.a. Residents' rights; (Class III)
6.1.1.b. Phone numbers of the abuse hotline; the Office of Health Facility Licensure and Certification; the state ombudsman; and the regional ombudsman; (Class III)
6.1.1.c. Information about the ombudsman program¬ including:
6.1.1.c.1. The name, address and telephone number of the designated long-term care ombudsman program serving the region in which the residential care community is located;
6.1.1.c.2. A brief description of the services provided by the long-term care ombudsman program; and
6.1.1.c.3. A statement as to the penalties for willful interference and retaliation; (Class III) and
6.1.1.d. The residential care community’s current license. (Class III)
6.1.2. The licensee shall promptly notify the resident and the resident's legal representative or designated family member whenever there is a change in residents’ rights. (Class III)
6.1.3. If a legal representative has been appointed for or designated by any resident as having the authority to exercise on behalf of the resident one or more of the resident's rights under this rule, the licensee shall afford the legal representative full opportunity to exercise the authority. If an appointed or designated legal representative exercises this authority, he or she shall exercise his or her authority in a manner consistent with all applicable state and federal laws and rules and regulations. (Class III)
6.1.4. Nothing in this rule shall in any way be construed to diminish or deprive any individual of rights recognized and established under other laws of the State of West Virginia or of the United States. (Class III)
6.1.5. A resident shall be encouraged and assisted throughout the duration of his or her stay to exercise his or her rights as a resident and as a citizen, such as voting in governmental elections. (Class III)
6.1.6. A resident has the right to be free from restraint, interference, coercion, discrimination, or reprisal from the licensee in exercising his or her rights. (Class II)
6.2. Notice of Rights.
6.2.1. The licensee shall provide a copy of residents' rights to the residents with duplicates on request. The date the rights are distributed shall be recorded. (Class III)
6.2.2. The resident has the right to inspect all records pertaining to him or her and to purchase photocopies at a reasonable cost that is comparable to copying charges by local public agencies. (Class III)
6.2.3. Residents have the right, if they choose, to view the results of inspections and complaint investigations conducted by the Office of Health Facility Licensure and Certification. Deficiencies cited during the most recent survey and any complaint investigations conducted within the preceding 12 months, and the residential care community's plan of correction shall be located in a place accessible to residents. (Class III)
6.2.4. The licensee shall notify the resident and the resident’s legal representative or designated family member at least 72 hours prior to a change in room or roommate assignment unless an emergency situation occurs. (Class III)
6.3. Treatment.
6.3.1. The resident has the right to participate in planning his or her overall care, to utilize the physician or pharmacist of his or her choice, to be fully informed in advance about care and treatment that may affect him or her, to make advanced directives about his or her medical care and to refuse treatment. (Class II)
6.3.2. No resident shall be abused, exploited, neglected, mistreated, or restrained by physical or chemical means.
6.3.2.a. Physical restraints may be used only if all the following conditions are present:
6.3.2.a.1. The restraints are used under a physician’s order;
6.3.2.a.2. The restraints are used in an emergency for the safety of the residents or others;
6.3.2.a.3. The restraints are applied only by staff who have been trained in their use;
6.3.2.a.4. The restraints are cloth vests or soft belts;
6.3.2.a.5. The restraints are released every two hours for at least 10 minutes;
6.3.2.a.6. Professional help is called; and
6.3.2.a.7. The restraints are only used until professional help arrives, in no case exceeding 24 hours.
6.3.2.b. These procedures shall be documented and available for review by the Director. (Class I)
6.3.3. Any medical, dental or mental health professional, ordained minister, Christian science practitioner, religious healer, social service worker, peace officer, or law enforcement officer is required under the adult protective services law, W. Va. Code §9-6-9 to report any incident in which an incapacitated adult is neglected, abused, or in an emergency situation, subject to conditions likely to result in neglect, abuse or emergency, or has died as a result of abuse or neglect. Reports of neglect, abuse or emergency situations shall be made immediately to the local adult protective services or by calling the adult protective services hotline number, as required by law, and to the Office of Health Facility Licensure and Certification. The Director may report alleged failures by a licensed health care professional to report alleged incidents of neglect or abuse or emergency situations to the individual's licensing board. (Class I)
6.3.4. The licensee shall assure that all alleged violations involving abuse, exploitation or neglect are immediately and thoroughly investigated and documented by the licensee or his or her designee on receipt of the allegation. While the investigation is in progress, measures shall be taken to ensure that abuse does not occur. (Class I)
6.3.5. If the allegation is substantiated, the licensee shall assure that appropriate sanctions are invoked, or actions are taken to prevent a recurrence of alleged abuse, exploitation or neglect. (Class I)
6.3.6. The licensee shall assure that the Office of Health Facility Licensure and Certification has been notified within 72 hours of the date of the allegation of abuse, exploitation, or neglect. The licensee shall concurrently forward to the Director documentation of the investigation, the results of the investigation and the response to the investigation. (Class III)
6.3.7. The resident has the right to refuse to participate in experimental research. A resident shall participate in experimental research only on the basis of prior written informed consent. Any informed consent procedures shall be in conformance with applicable state and federal laws, rules and regulations. (Class I)
6.4. Self Determination.
6.4.1. A resident has the right to meet with and participate in the activities of social, religious and other local groups, at his or her discretion. (Class III)
6.4.2. Residents have the right to assemble and organize themselves as a group to solicit and recommend improvements in the residential care community's services and to resolve problems that may arise between the residents and the licensee. (Class III)
6.4.3. A resident shall not be compelled to retire at night or arise in the morning at the same set time. (Class III)
6.4.4. Residents have the right to be free to leave the residential care community, however, this right does not absolve the licensee of the responsibility to supervise residents. (Class II)
6.5. Privacy and Confidentiality.
6.5.1. The resident has the right to personal privacy and confidentiality of his or her personal and permanent resident record. Personal privacy includes accommodations, medical treatment, written and telephone communications, personal assistance, visits and meetings of family and resident groups. (Class II)
6.5.2. The resident has the right to associate and communicate privately with persons of his or her choice. (Class III)
6.5.3. No person shall enter a resident’s apartment without identifying him or herself to the resident and receiving the resident's permission to enter. (Class III)
6.6. Complaints.
6.6.1. The resident has the right to voice grievances with respect to treatment or care furnished without discrimination or reprisal for voicing the grievance. (Class II)
6.6.2. The resident has the right to prompt action by the licensee to resolve grievances the residents might have, including those with respect to the behavior of other residents. The licensee shall respond to the complainant in writing within 24 hours for serious complaints, such as abuse, neglect, or injuries of unknown origin. For complaints of a less serious nature, the licensee shall respond to the complainant in writing no later than 4 days after the complaint is filed. (Class III)
6.6.3. Nothing in this rule shall be construed to limit in any way the lawful authority of the Secretary of the West Virginia Department of Human Services to administer and implement W. Va. Code §9-6-1, et seq. relating to adult protective services. (Class II)
6.7. Work.
6.7.1. The resident has the right to be employed outside the residential care community. (Class III)
6.7.2. The resident has the right to refuse to perform services for the residential care community. (Class III)
6.7.3. The resident has the right to perform services for the residential care community when:
6.7.3.a. The licensee has documented the resident's need or desire for work in the service plan in the resident's record; (Class III)
6.7.3.b. The agreement specifies duties, hours of work and compensation; (Class III)
6.7.3.c. The agreement is not a condition for admission or continued residence; (Class III) and
6.7.3.d. The resident enters into the agreement voluntarily. (Class III)
6.7.4. Any resident who performs any staff duties shall meet the personnel and health requirements for that position. (Class II)
6.7.5. A licensee shall not permit residents to perform work which creates conditions potentially hazardous for themselves or others. (Class I)
6.8. Mail and Communication.
6.8.1. The resident has the right to send and promptly receive unopened mail. A staff member shall only open and read correspondence on the direct written request of the resident. (Class III)
6.8.2. The resident has the right to have access to stationary, postage and writing implements. (Class III)
6.8.3. The resident has the right to have access to a telephone. Privacy shall be afforded to the residents during telephone use. (Class III)
6.9. Access and Visitation Rights.
6.9.1. The resident has the right to receive visitors. Relatives and members of the clergy shall be permitted to visit at any time. Any entity or individual that provides health, social, legal, or other services to a resident, shall be permitted access to the resident. All visitation is subject to the residents’ right to deny or withdraw consent at any time. (Class I)
6.9.2. The resident has the right to receive information from agencies acting as client advocates such as the State's long-term care ombudsman program, and to be afforded the opportunity to contact these agencies. (Class II)
6.10. Personal Property.
6.10.1. The resident has the right to retain and use personal possessions including furnishings, and clothing as space permits, unless to do so would infringe upon the rights, health or safety of other residents. (Class III)
6.11. Civil Rights.
6.11.1. Individuals have the right to be free from discriminatory practices related to admission or services on the grounds of race, religion, national origin, age, gender, sexual orientation or disability. (Class II)
W. Va. Code R. § 71-23-7 Health Care Standards
7.1. Admission
7.1.1. Only self-preservation individuals shall be admitted. The resident record shall include documented certification by a physician or psychologist that the resident is capable of self-preservation by virtue of his or her ability to follow directions and, with prompting, if necessary, to take appropriate action for self-preservation under emergency conditions, except as provided in this section. The certification shall be updated as indicated by changes in the resident's physical or mental condition. (Class II)
7.1.2. Individuals admitted may be in need of personal assistance in activities of daily living, in need of supervision because of mental or physical impairment, or have limited and intermittent nursing care needs. (Class II)
7.1.3. Individuals requiring ongoing or extensive nursing services shall not be admitted. (Class II)
7.1.4. Individuals requiring a level of service for which the residential care community is not licensed or does not provide shall not be admitted. (Class I)
7.2. Retention of Residents Whose Condition and Functional Ability Declines After Admission.
7.2.1. In a residential care community, individuals who qualify for and are receiving services coordinated by a licensed hospice may receive these services, except those services utilizing equipment which requires auxiliary electrical power in the event of a power failure, such as suction apparatus, and intravenous or tube feeding pumps, shall not be used unless the residential care community has a backup power generator. In the event that a resident is receiving limited or intermittent nursing care or hospice services, the licensee shall assure that the resident has privacy in care and the ability to evacuate in an emergency. The provision of services to the residents receiving limited or intermittent nursing care or hospice care shall not interfere with the provision of services to other residents. (Class I)
7.2.2. If a resident exhibits symptoms of a mental or developmental disorder, and the resident is not receiving services to meet his or her current needs, is not a client of a behavioral health center or does not have a case manager, the licensee shall advise the resident’s physician and on his or her advice notify the resident or his or her legal representative of the behavioral health service options within the local area. If the resident or his or her legal representative fails to meet the resident's needs in this area in a timely manner, then the licensee shall, after consultation with the resident’s physician, refer the resident to a licensed behavioral health agency. (Class II)
7.2.3. The licensee shall seek immediate treatment for a resident or refuse to admit a prospective resident if the licensee has reason to believe that the resident may suffer serious harm or is likely to cause serious harm to himself or herself or to others if appropriate interventions are not provided in a timely manner. (Class I)
7.2.4. A resident who becomes incapable of self-preservation subsequent to admission may remain in the residential care community for 90 days during a temporary illness or recovery from surgery if the resident does not require nursing care in excess of limited and intermittent nursing care, the resident is not incapable of self-preservation for more than 90 days, and the following criteria are substantiated through resident interview:
7.2.4.a. The resident requests to remain in the residential care community; (Class II)
7.2.4.b. The resident is advised of the availability of other specialized healthcare facilities to treat his or her condition; (Class II)
7.2.4.c. The need for specialized health care is the result of a medical pathology or a result of the normal aging process. (Class II)
7.2.5. The licensee shall maintain a non-self-preserving resident’s safety and meet their needs until such time as the resident’s condition improves or he or she is discharged. (Class I)
7.3. Discharge and Transfer Procedures.
7.3.1. The licensee of a residential care community with a resident who needs more than limited and intermittent nursing care shall inform the resident or his or her legal representative of the need to move the resident to a health care facility with the capability of providing the needed level of nursing care. (Class III)
7.3.2. The licensee shall assist the resident and his or her legal representative to attempt on a weekly basis to secure placement in alternative care facilities. (Class III)
7.3.3. The licensee shall thoroughly document in the resident's record efforts made to obtain placement in alternative care facilities and refusals from the facilities in the event that the resident is unable to secure alternative placement and remains in the residential care community. (Class III)
7.3.4. The licensee shall give the residents 30-day notice prior to discharge unless an emergency situation which requires transfer to a hospital or other higher level of care exists or if the resident is a danger to himself or herself or others. A copy of the written discharge notice shall be filed in the resident's record. (Class III)
7.3.5. Prior to transfer or discharge, the licensee shall prepare a summary to accompany the resident which shall include the residents’ functional needs assessment, individualized service plans, current physician’s orders, any advanced directives, any allergies and pertinent progress notes. (Class II)
7.4. Records.
7.4.1. All resident records containing the information required by this rule shall be retained at the residential care community in a secure area and shall be made available for inspection by the Director’s duly authorized representative. (Class III)
7.4.2. The licensee shall begin at admission, maintain, and keep current, a record for each resident. (Class II)
7.4.3. The resident’s record shall include:
7.4.3.a. The resident's name; social security number; birth date; sex; marital status; religious preference and affiliation, if any; (Class III)
7.4.3.b. The names, addresses and telephone numbers for the following relevant persons: physician; dentist; legal representative, if applicable; person, organization or agency responsible for payments for support of the resident, if applicable; next of kin or other interested relatives; persons to be notified in case of an emergency or death; any case management agency or organization; and any day care or other programs in which the resident regularly participates; (Class III)
7.4.3.c. All agreements or contracts entered into between the resident and the licensee; (Class III)
7.4.3.d. Admission, transfer and discharge data; (Class III)
7.4.3.e. Initial and subsequent physician health assessments, advanced directives, physician's orders, medication administration records; allergies; resident admission and monthly weight; the dates of physician, dentist and other health and behavioral health care providers and other professional appointments and visits (including those for accidents and illness requiring medical attention, coordinated by the licensee); all contact with the resident's physician by the residential care community staff; and observations by personnel, licensed nurses, physician, or others authorized to care for the resident; (Class II)
7.4.3.f. Documentation of incidents and accidents involving the resident, including, at a minimum, the time, place, the action taken in response to the incident and the notification of the resident's physician (if applicable), family or legal representative; (Class III)
7.4.3.g. The resident's functional needs assessment, service plan, and updates annually and as indicated by significant changes in the resident=s condition; (Class II)
7.4.3.h. A list of clothing and personal possessions of the resident if the resident so desires; (Class III) and
7.4.3.i. Documentation of death, including cause and disposition of the resident's body, medications, personal effects and any valuables safeguarded by the licensee. (Class III)
7.4.4. The licensee shall keep resident records in safe storage for at least five years from the date of the death, discharge or transfer of the resident. If the residential care community ceases operating, the licensee shall procure a holding area for the resident records that will ensure the confidentiality and safety of the records from loss, destruction or unauthorized use. (Class III)
7.4.5. Each licensee shall maintain a permanent resident register in a bound notebook in chronological order according to the date of the resident’s admission. The register shall include the date of the resident’s admission, his or her name, the date of his or her last day in the residential care community and the name and address of the residence, health care facility or other place to which the resident (if living) has been discharged. (Class III)
7.5. Assessments and Service Plans
7.5.1. The licensee shall ensure that each resident has a written, signed and dated health assessment by a licensed physician or other licensed health care professional authorized to perform such assessments by applicable State laws and rules not more than 60 days prior to the those resident's admission, or no more than five working days following admission, and at least annually thereafter. The admission and annual health assessment shall include screening for tuberculosis and other communicable diseases if indicated by exposure, prevalence or risk according to current medical practice in congregate living situations as indicated by the Director. (Class II)
7.5.2. Within 30 days of admission, every resident shall have an individualized functional needs assessment completed in writing by a licensed health care professional. At a minimum, the resident's assessment shall include a review of health status and functional, psychosocial, activity and dietary needs. (Class II)
7.5.3. Each resident shall have a service plan, based upon his or her functional needs assessment, developed within 45 days of admission. The service plan shall be developed in response to the individual resident’s needs. (Class II)
7.5.4. The assessment and service plan shall reflect the resident’s current needs and therefore shall be updated annually and as indicated by a significant change in the resident’s condition. (Class II)
7.6. Services.
7.6.1. The licensee shall provide assistance to the resident and the resident's family in the resident=s adjustment to the residential care community setting and to transfer when other levels of care become necessary. (Class II)
7.6.2. The licensee shall encourage and assist all residents in developing and maintaining independence, self-determination and the highest level of functioning possible. (Class II)
7.6.3. The licensee shall provide the resident with personal assistance to meet the needs identified on his or her functional needs assessment. Resident needs may include, but are not limited to, assistance from staff to supervise self-administration of medically prescribed drugs and treatments, to follow any planned diet, rest or activity regimen, to utilize functional equipment (i.e. hearing aids, glasses, canes, etc.), and to perform activities of daily living. (Class II)
7.6.4. The licensee shall assist the resident in making appointments for appropriate medical, dental, nursing or mental health services as needed by the resident. (Class II)
7.6.5. The licensee shall provide or arrange for appropriate transportation of the resident to receive medical appointments and social services. (Class III)
7.7. Medications and Treatments.
7.7.1. The licensee shall ensure that resident care is provided by appropriately licensed health care professionals when required by state law and rules, and that medications and treatments given to residents are administered as required by state and federal law, rules and regulations. (Class I)
7.7.2. The written order or prescription of an individual authorized by law to prescribe drugs in this State is required for obtaining, administering or self-administering of prescription and over-the counter medications. Copies of the prescriptions or written orders for drugs shall be retained in the resident's record. (Class I)
7.7.3. The prescribing health care professional shall determine whether or not the resident can self-administer medications in a safe manner and shall document this in the residents medical record. (Class I)
7.7.4. Verbal orders of physicians or other health care professionals shall be reviewed and signed by the individual responsible for the order within 10 working days from the original order date. (Class II)
7.7.5. The attending physician, or other health care professional, or a consulting pharmacist shall review the medication regimen of each resident as needed, but at least annually. The resident’s record shall contain documentation of this review. (Class II)
7.7.6. The licensee shall keep a record of all drugs given to each resident indicating each dose given. The record shall include the resident's name; the name of the medication; the dosage to be administered and route of administration; the time or intervals at which the medication is to be administered; the date the medication is to begin and cease; the printed name, initials and signature of the individual who administered the medication; and any special instructions for handling or administering the medication, including instructions for maintaining aseptic conditions and appropriate storage. (Class I)
7.7.7. Medications shall be kept in a locked room, cabinet or other storage receptacle and accessible only to the staff responsible for medications unless residents are determined to be capable of self-medication. In those cases, the licensee shall provide the self-medicating resident with resources to store medications inaccessible to other residents. (Class I)
7.7.8. The container label of each prescription drug shall be legible, legally dispensed and labeled for the resident for whom it has been prescribed. When the prescriber's directions change, the container shall be relabeled by a licensed pharmacist or there shall be a written document signed and dated by the physician to verify the change in a medication prescription which is stored in the resident record. All medications shall be kept in their original labeled containers and shall be labeled in accordance with the rules of the West Virginia board of pharmacy and in a manner that the name and strength of medication, manufacturer name, lot number, and expiration date can be readily identified by the home. (Class I)
7.7.9. If refrigeration of medication is required, the licensee shall provide: a refrigerator in a locked room; a locked refrigerator; or a locked box within the refrigerator for storage. A thermometer is required in a refrigerator storing medications. The temperature within the refrigerator storing medications shall be maintained within the recommended temperature range on the medication package. (Class I)
7.7.10. If Schedule II drugs of the Uniform Controlled Substances Act, W. Va. Code §§60A-1-101, et seq., are administered, a copy of the written prescription signed by the physician shall be in the resident's record and a proof of use record shall be maintained. Schedule II drugs shall be stored in a manner so that they are securely protected by two locks. The key to the separately locked Schedule II drugs shall not be the same key that is used to gain access to non-scheduled drugs. (Class I)
7.7.11. The disposition of unused medications due to situations such as a change in drug therapy, the death of the resident, the resident leaving the residential care community, or the resident’s inability to take the medication, shall be in accordance with the following:
7.7.11.a. Individual resident drugs supplied in unit dose or the manufacturer’s originally sealed container shall be returned, if unopened, unless otherwise prohibited under applicable federal or State laws, to the issuing pharmacy, Provided, That:
7.7.11.a.1. No drug covered under the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 21 U.S.C. §§ 801, et seq. shall be returned (Schedule II, III, IV, V); (Class III)
7.7.11.a.2. All returned drugs shall be identified as to lot or control number; (Class III) and
7.7.11.a.3. The signatures of the receiving pharmacist and the ¬residential care community registered nurse shall be recorded in a separate log which lists the name of the patient, the name and strength of the drug with the National Drug Code, the prescription number (if applicable), the amount of the drug returned and the date of return. The log shall be retained for at least two years; (Class III) and
7.7.11.b. Resident drugs which are outdated, adulterated, deteriorated, or non-returnable shall be destroyed in the following manner:
7.7.11.b.1. Drugs listed in Schedules II, III, IV or V of the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 21 U.S.C. §§801, et seq., shall be destroyed by the residential care community in the presence of a pharmacist and the registered nurse. The following shall be retained for at least two years: the name of the resident, the name and strength of the drug, the prescription number, the amount destroyed, the date of destruction and the signatures of the witnesses required above. (Class III) and
7.7.11.b.2. All other non-scheduled legend drugs not in unit dose packaging or not in the manufacturer’s originally sealed container shall be destroyed by the residential care community in the presence of a pharmacist or licensed nurse and one other witness. The patient’s health record or a separate log shall contain the name of the patient, the name and strength of the drug, the prescription number, if applicable, the amount destroyed, the date of destruction and the signatures of the witnesses. The log shall be retained for at least two years. (Class III)
7.7.12. When oxygen therapy is required, the residential care community shall have a portable source available for resident use for out-of-room activities and in the event of power failure. The licensee shall maintain any equipment electrically safe and shall arrange for service as needed; store the oxygen tubing in a sanitary manner when not in use and replace it as indicated by accepted infection control measures; prohibit smoking in any location when oxygen is in use; post no smoking signs conspicuously; and enforce the smoking prohibition. (Class I)
7.8. Accident, Illness and Major Incident Procedures.
7.8.1. A standard American Red Cross first-aid kit, or the equivalent, shall be readily available at all times to provide emergency aid for commonly occurring household injuries. (Class III)
7.8.2. When a resident experiences an illness or an incident that results in injury or resident complaint, the licensee shall arrange for an appropriately licensed health care professional to:
7.8.2.a. Assess the severity and cause of the accident or illness; (Class I)
7.8.2.b. Advise the staff as to the need to seek emergency assistance related to the accident or illness; (Class I) and
7.8.2.c. Record actions taken in the resident's record, and recommend to the licensee, in writing, actions, if any, to take to avoid similar accidents or illnesses. The licensee shall keep a written documentation of the recommendations. (Class II)
7.8.3. If the resident has an obvious need for emergency assistance, the person on duty should first obtain emergency assistance, and then call the licensed health care professional. (Class I)
7.8.4. The staff of the residential care community shall monitor and document the resident's condition for a period of 24 hours following the accident or the onset of the illness or as specified by the licensed health care professional. (Class II)
7.8.5. The residential care community shall report major incidents to the West Virginia Office of Health Facility Licensure and Certification as soon as possible, but no later than the next business day. (Class III)
7.8.6. The residential care community staff shall promptly notify the resident's physician, responsible party and/or next of kin, when there is a major incident or any significant change in the resident's condition. (Class I)
7.8.7. The licensee shall take reasonable precautions to comply with recommendations by the local public health authority should an epidemic occur. (Class I)
7.9. Resident Death.
7.9.1. The residential care community shall immediately report the suspected death of a resident to the attending physician and report death to the resident's family or legal representative, as applicable. (Class III)
7.9.2. Upon the death of a resident, the following information shall be entered in the resident's record:
7.9.2.a. A record of the notification of the resident's physician, the designated individual for emergencies, and legal representative, if any; (Class III)
7.9.2.b. The date, time and circumstance of death, including the name of person to whom the body was released and any other details specific to the death; (Class III) and
7.9.2.c. A record of the disposition of the resident's personal belongings that were released, including funds. The resident’s legal representative or next of kin shall sign a detailed receipt for these items. (Class III)
7.9.3. In the event of the death of a resident, a licensee shall deliver all property held in trust to the resident's estate administrator or executor. (Class III)
W. Va. Code R. § 71-23-8 Activities
8.1. The licensee shall provide a planned and meaningful activity program designed to meet the needs of each resident. The program shall:
8.1.1. Encourage, guide, or assist residents with arrangements to participate in social, recreational, diversional, vocational, religious, or other activities within the home in accordance with individual interests, tolerance and abilities; (Class III)
8.1.2. Provide information and referral services and opportunities for utilization of social, recreational, and vocational activities within the residential care community; (Class III)
8.1.3. Provide a monthly calendar of varied events which lists all social and recreational activities for the residents; (Class III)
8.1.4. Provide at least 11 hours of scheduled activities available to the residents each week for no less than one hour each day; (Class III) and
8.1.5. Encourage but not require residents to participate in activities and not restrict a resident's participation in an activity except upon a physician's order. (Class III)
W. Va. Code R. § 71-23-9 Dietetic Services
9.1. General.
9.1.1. The licensee shall ensure that each resident is offered at least three freshly prepared meals daily, seven days a week and special diets and snacks which meet resident needs and choices, as identified in his or her needs assessment. Residents’ meals shall be in substantial compliance with current Recommended Dietary Allowances of the Food and Nutrition Board of National Academy of Sciences, National Research Council, or as specified in this rule, except as ordered by a physician. (Class II)
9.1.2. When therapeutic or modified diet services are provided by the residential care community, a physician's order for each diet and the meal pattern, including types and amounts of food to be served, shall be on file. Therapeutic or modified diets, as recommended by the physician, shall be prepared according to written instructions obtained from the resident's physician or dietitian. At no time shall a resident be offered less than 1,400 calories daily, unless specifically ordered by a physician. (Class I)
9.1.3. The residents shall be offered a variety of foods at meals as follows:
9.1.3.a. At breakfast: fruit or juice; cereal, whole grain or enriched bread product; and Grade A vitamin D milk; (Class III) and
9.1.3.b. At noon and evening meals: protein sources, such as meat, poultry, fish, eggs, cooked dried legumes, cheese or peanut butter; vegetable or fruit; whole grain or enriched grain food products; and Grade A vitamin D milk. (Class III)
9.1.4. Each resident shall be weighed upon admission and monthly and provided with the amount of food and fluid on a daily basis necessary to maintain his or her appropriate minimum average weight. (Class III)
9.1.5. The licensee shall encourage resident participation in menu planning and shall serve meals at times mutually agreed upon by residents in the home with consideration of individual resident preferences. (Class III)
9.1.6. The licensee shall accommodate residents who are unable to eat at the planned mealtime and provide for a meal substitution if the resident does not tolerate the foods planned for the meal. (Class II)
9.2. Administrative Requirements.
9.2.1. The licensee shall maintain a daily record of actual foods served for each meal. Menu content shall be varied. (Class III)
9.2.2. The licensee shall keep on file for at least 30 days the grocery receipts and records of actual food served. (Class III)
9.3. Food Service Sanitation.
9.3.1. The food service facilities shall comply with the Department of Health Legislative Rule, Food Service Sanitation, W. Va. Code R. §§64-17-1, et seq.
9.3.2. When required by the local health department having jurisdiction over the county in which the center is located, all persons engaged in food service activities shall have valid food service worker permits.
W. Va. Code R. § 71-23-10 Fire Safety, Disaster, and Emergency Preparedness
10.1. Fire Safety.
10.1.1. The licensee shall provide evidence of compliance with applicable rules of the State fire commission. The state fire marshal’s written approval is required for any variation to compliance with the fire code, and the variation shall be coordinated with the Director. (Class I)
10.2. Disaster and Emergency Preparedness.
10.2.1. The residential care community shall have a written disaster and emergency preparedness plan which states procedures to be followed in the event of an internal or external disaster or emergency which could severely affect the operation of the residential care community. (Class I)
10.2.2. The disaster and emergency preparedness plan shall have procedures for the following situations at minimum and shall identify specific tasks and responsibilities for all employees in the event of the following: missing residents; high winds; tornadoes; floods; bomb threats; utility failure; and severe winter weather. (Class I)
10.2.3. The disaster and emergency preparedness plan shall include at least an emergency water agreement; an alternate shelter agreement; an emergency transportation policy; and an emergency food supply list and menu which will provide nutrition for all persons residing in the residential care community for a minimum of 72 hours. (Class I)
10.2.4. The licensee shall obtain the assistance of qualified fire safety, emergency response teams and other appropriate experts in developing and maintaining the disaster and emergency preparedness plan. Documentation by the expert shall be maintained in the residential care community. (Class I)
10.2.5. The licensee shall provide the local fire department with a floor plan and with the opportunity to become familiar with the residential care community. (Class I)
10.2.6. The residential care community shall have written plans and procedures for transferring casualties and uninjured residents. These procedures shall include the transfer of pertinent resident records including identification information, diagnoses, allergies, advanced directives, medications and treatments, and any other records needed to ensure continuity of care. (Class I)
10.2.7. There shall be copies of the disaster and emergency preparedness plan at all staff stations or emergency control stations. The disaster and emergency preparedness plan shall be located in an area that allows visual contact at all times. Staff shall know the location at all times. (Class I)
10.2.8. The disaster and emergency preparedness plan shall be reviewed and updated by the administrator or his or her designee on an annual basis and signed and dated to verify review. (Class III)
10.2.9. Emergency call information shall be conspicuously posted near each telephone in the residential care community, exclusive of telephones in resident rooms. This information shall include at least the following:
10.2.9.a. The telephone numbers of the fire department, the police, an ambulance service and other appropriate emergency services; (Class I)
10.2.9.b. Key personnel telephone numbers, including at least the following: the administrator; physician (if applicable); or the nurse on call (if applicable); (Class I) and
10.2.9.c. The names and telephone numbers of all other personnel to be called in case of fire or emergency. (Class I)
10.2.10. Simple floor plans showing the location of exits, fire alarm pull stations, fire extinguishers, and fire fighting equipment shall be posted on all floors and in each separate wing.
(Class I)
10.3. Disaster Training and Rehearsal.
10.3.1. Within 24 hours of admission, the disaster and emergency preparedness plan procedures shall be clearly communicated by the staff to the resident and documented. (Class I)
10.3.2. The disaster and emergency preparedness plan shall be rehearsed by all personnel from all shifts once yearly, and the rehearsals shall be documented in the residential care community’s records. (Class I)
W. Va. Code R. § 71-23-11 Physical Facilities
11.1. Applicability; Construction; Additions; Renovations; Alterations; Other Standards.
11.1.1. The provisions of this section apply to physical facilities, operations, maintenance and equipment for all ¬residential care communities, renovations or additions. (Class I)
11.1.2. A complete set of drawings and specifications for the architectural, structural, and mechanical work shall be submitted to and approved by the Director before construction begins. This requirement applies to new construction, additions, renovations, or alterations to existing residential care communities. (Class I)
11.1.3. The submitted set of construction documents (drawings and specifications) shall be prepared, signed and sealed by an individual registered to practice architecture in the State of West Virginia. The residential care community shall submit one set of these documents to the State Fire Marshal for review. The new residential care community or addition shall be inspected during the construction phase by a registered professional architect, preferably the designing architect. (Class I)
11.1.4. During the construction phase an as-built set of drawings shall be kept by the general contractor on which all changes (from all trades) to the project are noted. Each change shall be noted in red and dated. The architect shall present this as-built set of drawings to the owner when the project is completed. (Class I)
11.1.5. All construction, new additions, renovations or alterations shall be inspected and approved by the Director prior to admitting new or additional residents. When construction is substantially complete, the architect shall submit to the Director a substantial completion form signed by all the parties involved and a completed inspection request form. (Class I)
11.1.6. Unless substantial construction is started within one year of the date of approval of final drawings, the owner or architect shall secure written notification from the Director that the plan approval for construction is still valid and in compliance with this rule. (Class I)
11.1.7. Plans for addition, removal, or modification of equipment which is permanently affixed to the building, or which may otherwise involve or necessitate new construction, alterations, or additions to the residential care community shall be submitted to and approved by the Director. (Class I)
11.1.8. Other changes involving equipment, which may or may not require physical changes in the residential care community, but which may relate to other standards and requirements of this rule may require the Director’s approval. Residential care communities may request approval in advance from the Director regarding a particular change or rearrangement. Areas in which changes are likely to require approval include, but are not limited to, the kitchen, the laundry, and heating equipment. (Class I)
11.1.9. All fees specified in the Department of Health Legislative Rule, Fees for Services, W. Va. Code R. §§64-51-1, et seq., for site inspections of new construction or major renovations, architect reviews of drawings and specifications, and inspections of new projects prior to openings are the responsibility of the licensee. (Class III)
11.1.10. A licensee shall obtain approval from the Director of the licensee’s plan of operation, and the Director shall determine the apartment/resident capacity. An increase in capacity can occur only with the permission of the Director. (Class II)
11.1.11. The Americans with Disabilities Act (ADA) and the American National Standards Institute (ANSI) codes shall be followed when they apply. (Class II)
11.1.12. The residential care community shall comply with the State Fire Commission’s rule, State Building Code, W. Va. Code R. §§87-4-1, et seq. (Class I)
11.1.13. Where local codes or regulations require standards higher than those required by this rule, local building codes and zoning restrictions shall be observed. (Class I)
11.1.14. Evidence of compliance signed by local fire, building and zoning officials shall be available on-site for review. (Class I)
11.2. Site Characteristics and Accessibility
11.2.1. Sites for all new residential care communities and sites of additions to existing residential care communities shall be inspected by the Director prior to the architect beginning work on final drawings and specifications. (Class I)
11.2.2. Residential care communities shall be located in a residential setting as convenient as possible for necessary services and access to the residential care communities, if local zoning laws allow. (Class III)
11.2.3. There shall be adequate drainage to divert surface water from the residential care community. (Class II)
11.2.4. The residential care community's hard surface access road shall connect directly to a hard surface highway which provides access to hospitals and allows medical and fire personnel access. (Class I)
11.2.5. Any questionable soil conditions shall be reviewed by a qualified soils engineer and if conditions require, earth core borings shall be conducted. The Director shall be supplied with copies of soil test reports if engineered soil is installed or if other soil tests are conducted. (Class I)
11.2.6. The site shall have accessibility to electric power. Water shall be supplied with sufficient pressure to operate the fire sprinkler system adequately. (Class I)
11.2.7. Parking areas shall be constructed using clean, solid earth bed, a compacted stone base and a hard surface all weather finish coat with a slope which permits good drainage. There shall be parking spaces for all staff on duty, and a minimum of one parking space for each five beds. A minimum of two handicapped parking spaces shall be located at the main entrance. All parking areas shall be free of broken, gaped or uneven paving. (Class II)
11.2.8. Hard surface concrete walks, a minimum of 48 inches wide with light broom top surface texture, shall be provided at all exits and connect into the main walk or parking area. (Class II)
11.3. Physical Facilities and Equipment
11.3.1. Maintenance and housekeeping shall be provided to maintain safe, sanitary and accident-free living conditions. (Class I)
11.3.2. Low windows, open porches, changes in floor level and similar accident hazards shall be designed so that the danger of accident is minimized. Danger areas on the property outside the building shall be safeguarded. (Class I)
11.3.3. All equipment shall be maintained as recommended by the manufacturer and the licensee shall establish a program of preventive maintenance for all equipment. (Class I)
11.3.4. The residential care community shall be kept free of insects, rodents and vermin. Pesticides shall be applied only by an applicator certified by the United States Department of Agriculture. (Class I)
11.3.5. Each room occupied or used by residents shall have level floors which are slip resistant. Floor covering shall be maintained in a clean and odor-free condition, free from protrusions and lie flat and even. (Class II)
11.3.6. Ceilings and walls shall be in good repair, free from unfilled cracks, and finished to allow for satisfactory cleaning. (Class II)
11.3.7. All doors and windows shall be operable and shall be constructed and maintained to fit snugly yet be opened and closed easily without requiring the use of special tools. All doors shall be provided with positive latches suitable for keeping the doors closed. (Class I)
11.3.8. Minimum door widths for new construction shall be 36 inches for exterior exits and resident rooms. Minimum door widths for new construction shall be 34 inches for bathroom doors. (Class II)
11.3.9. Outer openings that are left open for extended periods of time shall be screened to prevent the entrance of insects. Insect screening shall be maintained free of openings large enough to permit the entrance of insects. (Class II)
11.3.10. The residential care community shall have a heating system capable of maintaining a temperature in all rooms used by residents of at least 72 degrees Fahrenheit during cold weather. (Class I)
11.3.11. Supplemental heating devices, such as portable heaters, are prohibited. (Class I)
11.3.12. Cooling devices or systems shall be provided for the use of residents when temperatures inside exceed 80 degrees Fahrenheit. Acceptable cooling devices include, but are not limited to, air conditioners, electric fans and heat pumps. (Class I)
11.3.13. Ramps shall not be less than 48 inches wide nor steeper than one foot of rise in 12 feet of run and shall be finished with a non-slip surface. (Class I)
11.3.14. Handrails shall be provided on all sides of elevators and inside and outside stairs and ramps. Handrails shall be installed between 32 inches and 34 inches high and support a concentrated load of 250 pounds. (Class I)
11.3.15. Residential care communities shall have a call system which is audible to staff who are on duty and which can be accessed from each bed and other areas as necessary for the safety of residents. Portable battery operated or beeper-type systems may be considered. (Class I)
11.3.16. The residential care community shall have space adequate for the storage of linens, maintenance and housekeeping supplies, equipment, and food supplies. (Class II)
11.3.17. All residential care communities shall have at least one janitor's closet with a service sink for each story that houses residents. However, if existing facilities cannot comply with the janitor closet requirement on each floor, the residential care community must demonstrate a sanitary means of disposal of wastewater. (Class II)
11.3.18. Corridors, stairways and elevators shall be of width and a design that will easily accommodate the removal of residents by stretcher and shall be constructed and maintained in compliance with all applicable fire and safety requirements. Non-slip surfaces are required for stairways. Elevators shall comply with all appropriate State and federal laws. (Class I)
11.3.19. The licensee shall implement measures to ensure resident safety if it admits residents who exhibit behaviors which may cause harm to themselves or others or may place themselves or others in imminent danger or jeopardy. The safety measures may include but not be limited to door alarms. (Class I)
11.4. Apartments
11.4.1. Each apartment shall:
11.4.1.a. Be at least 300 square feet in size; (Class II)
11.4.1.b. Have doors capable of being locked; (Class II)
11.4.1.c. Contain at least one bedroom; (Class II)
11.4.1.d. Contain a kitchenette that includes a sink and refrigerator; (Class II)
11.4.1.e. Contain one full bathroom that includes a bathing area, toilet and sink; (Class II)
11.4.1.f. Contain grab-bars at toilets, tubs, and showers. These grab-bars shall be securely mounted to the finished wall with a steel plate or a two-inch by six-inch wood plate backing behind the wall. Grab bar brackets shall be provided at spacings which would support 250 pounds of concentrated load at any point on the grab-bar; (Class I)
11.4.1.g. Contain furniture, if furnished by the residential care community, appropriate in size and amount to the space provided and in all cases be in good repair; (Class II) and
11.4.1.h. Have a light controlled by a switch at the entry to the apartment and to the bedroom. (Class II)
11.4.2. Multiple occupancy apartments shall have at least 80 square feet of bedroom space per occupant and no more than two residents may occupy an apartment. (Class II)
11.5. Water Supply
11.5.1. The residential care community shall have a water supply which:
11.5.1.a. Is safe and sized to meet all residential needs and requirements of the sprinkler system; (Class I) and
11.5.1.b. Has as its source of water a public water system which complies with West Virginia Department of Health Legislative Rule, Public Water Systems, W. Va. Code R. §§64-3-1, et seq., or a water well which complies with West Virginia Department of Health Legislative Rules, Water Well Regulations, W. Va. Code R. §§64-19-1, et seq., and West Virginia Department of Health Legislative Rule, Water Well Design Standards, W. Va. Code R. §§64-46-1, et seq. (Class I)
11.5.2. The residential care community shall have hot and cold running water in sufficient supply to meet the needs of the residents, household members and employees. (Class I)
11.5.3. Hot water temperatures shall be maintained between 105 degrees Fahrenheit and 110 degrees Fahrenheit at all hot water sources except for dishwashers and congregate laundry facilities. A thermostatic mixing valve shall be utilized to control the temperature of hot water which is used by residents. (Class I)
11.6. Sewage.
11.6.1. Sewage disposal shall be in accordance with the West Virginia Department of Health Legislative Rule, Sewage System Rule, W. Va. Code R. §§64-9-1, et seq., and West Virginia Department of Health Legislative Rule, Sewage Treatment and Collection System Design Standards, W. Va. Code R. §§64-47-1, et seq. (Class I)
11.6.2. The sewage system shall be adequate to meet the residential care community's needs. (Class I)
11.6.3. Sewage systems shall be kept in good working order and shall be properly operated and maintained. (Class I)
11.7. Solid Waste.
11.7.1. All garbage and refuse shall be stored in durable, covered, leak-proof and vermin-proof containers and the containers shall be kept clean and free of all residue accumulation. Dumpsters in good repair are acceptable. (Class II)
11.7.2. The residential care community shall have solid waste containers in sufficient numbers and capacity to properly store all solid waste. (Class II)
11.7.3. Solid waste, including garbage and refuse, shall be removed from the building daily and the premises weekly, or more often if necessary. (Class II)
11.7.4. A concrete platform or metal rack is required for outside storage of solid waste containers. The method of storage shall prevent animals from getting into the contents of waste containers. (Class II)
11.7.5. When municipal or private garbage and refuse disposal service is not available, all garbage and refuse shall be disposed of in accordance with the applicable provisions of state and local law and rules governing the management of garbage and refuse. (Class II)
11.8. Electrical Requirements.
11.8.1. Each residential care community shall be supplied with electrical service, wiring, outlets, and fixtures which shall be installed to meet the national electric code and shall be maintained in good and safe working conditions. (Class I)
11.8.2. The electrical service shall be of the proper size to handle the load connected to it. (Class I)
11.8.3. Electrical duplex outlet receptacles shall be provided as follows:
11.8.3.a. In new facilities electrical outlets shall be located in the living room, recreation room, dining room and bedrooms. There shall be at least one receptacle on each wall. Walls longer than 12 feet in the leisure room shall have at least two receptacles on the walls. In existing facilities electrical outlets to meet the needs of the residents shall be provided; (Class I)
11.8.3.b. Other habitable rooms shall have a minimum of two receptacles; (Class I)
11.8.3.c. All receptacle outlets within six feet of any water supply shall be provided with ground fault circuit interrupter protection; (Class I)
11.8.3.d. Kitchens shall be provided with one receptacle per four lineal feet or a fraction thereof of the countertop preparation area with a minimum of two receptacles per counter. In addition, all counters wider than 12 inches of any length shall provide a minimum of one receptacle. On walls without counters there shall be receptacles with a maximum spacing of 12 feet. Separate outlets are required for refrigerators and cooking equipment which require specialty outlets; (Class I)
11.8.3.e. The laundry room shall have a specialty outlet for the clothes dryer and a dedicated outlet for the washer. A minimum of one outlet on a circuit separate from the washer and dryer shall be provided; (Class I) and
11.8.3.f. A minimum of one exterior receptacle duplex outlet with ground fault circuit interrupter protection shall be provided. (Class I)
11.9. Lighting Requirements.
11.9.1. For safety reasons, general outdoor lighting shall be provided to illuminate walks, porches, patios, steps and drive areas for the purposes of the residents’ safety. (Class I)
11.9.2. Emergency lights shall be mounted on walls in sufficient number to illuminate all exits on all levels. Emergency lights shall also be provided in the kitchen and as needed in areas where residents congregate. (Class I)
11.9.3. Minimum interior lighting levels are as follows:
11.9.3.a. Ten-foot candles in entrances, hallways, stairways, stair landings; (Class III)
11.9.3.b. Twenty-foot candles in general areas of the living room, leisure rooms, dining rooms, and bedrooms; (Class III)
11.9.3.c. Thirty-foot candles in reading, writing and game playing areas in the living room, leisure rooms, dining rooms and bedrooms; (Class III)
11.9.3.d. Fifty-foot candles in the cleaning and food preparation, cooking, and laundry areas; (Class III)
11.9.3.e. Thirty-foot candles in bath, lavatory, and toilet areas; (Class III) and
11.9.3.f. Fifty-foot candles in facial shaving and grooming areas, and at mirrors and hair styling areas. (Class III)
11.10. Pets and Other Animals.
11.10.1. Pets are permitted, provided that all residents are advised prior to admission that pets are kept on the premises. If pets are added after the admission of residents, all residents shall be in agreement to the addition of the pets. (Class III)
11.10.2. Wild, dangerous or obviously ill animals are prohibited. (Class I)
11.10.3. Animals and their quarters shall be kept in a clean condition at all times. (Class II)
11.10.4. Dogs and cats kept in the residential care community or on the grounds shall be properly vaccinated (for dogs this includes rabies, leptospirosis, distemper, and parvo and for cats this includes rabies). Documentation of the vaccination and prevention measures shall be available on the premises. (Class I)
11.11. Laundry and Linens.
11.11.1. Laundry facilities or services for residents' personal laundry shall be provided. Laundry services may be provided by an outside laundry service. (Class III)
11.11.2. Washing machines shall be installed so that no back-siphonage possibility exists, and electric or gas clothes dryers shall be vented to the outside. (Class I)
11.11.3. All laundry shall be dried mechanically in an electric or gas clothes dryer which is vented to the outside or a chemical sanitizer shall be added to the rinse water, and the laundry air-dried. (Class I)
11.11.4. Soiled and clean laundry shall not be stored together at any time. (Class II)
11.11.5. Soiled laundry shall be stored in non-absorbent, easily cleanable covered containers or disposable plastic bags. (Class II)
11.11.6. Table and kitchen linens shall be laundered separately from other washable goods. Sanitizing agents shall be used when laundering kitchen, bath, and bed linens. (Class II)
11.11.7. Locked storage facilities shall be utilized for laundry supplies, housekeeping supplies, insecticides, work supplies and any other toxic or hazardous materials. Food and drugs shall be stored in separate locations. (Class I)
11.11.8. There shall be a supply of sheets, pillowcases, bed coverings, towels, wash cloths, and other linens necessary to provide a minimum of two changes per bed in residential care communities that provide furnishings. (Class III)
W. Va. Code R. § 71-23-12 Requirements Related to the Provision of Limited and Intermittent Nursing
12.1. Standard Requirements.
12.1.1. The licensee of a residential care community which provides limited and intermittent nursing care shall arrange for a registered professional nurse to assume responsibility for the oversight of nursing care and services. The licensee shall enter into a written agreement with the registered professional nurse which specifies the responsibilities of the registered professional nurse and the licensee. Arrangements for nursing services may be made by contract with an individual or a nursing service with a management entity; or the residential care community may employ a registered nurse; or the administrator of the residential care community may act in this capacity, if he or she is a licensed registered professional nurse. Arrangements with a home care agency providing only direct care does not satisfy the requirements for nursing management oversight of all residents. (Class I)
12.1.2. Nursing support staff shall be under the supervision of the registered professional nurse who has assumed overall responsibility for the oversight and care provided to the residents. (Class I)
12.1.3. The licensee shall implement, within reasonable expectation, the recommendations of the registered nurse regarding care, services and staff training intended to protect the residents. (Class II)
12.1.4. The licensee shall provide written notice to each resident regarding the availability of nursing services at the time of admission, or, for current residents, within 30 days of the effective date of this rule. (Class III)
12.1.5. All physician orders shall be reviewed every 30 days for accuracy by the registered professional nurse or other lawfully authorized professional, unless there is a medical condition requiring a more frequent review as determined by the resident's physician. (Class II)
12.1.6. A physician or a consultant pharmacist shall conduct quarterly pharmacy reviews on all residents receiving limited or intermittent nursing services. (Class III)
12.1.7. The licensee shall ensure that the registered professional nurse maintains a general record with a complete signature for each entry which shall include at least the following:
12.1.7.a. The date, time in and time out for each visit (unless the registered professional nurse is employed by the residential care community at least 35 hours per week); (Class III)
12.1.7.b. A list of duties performed by the registered nurse during each visit; (Class III) and
12.1.7.c. A brief statement regarding identified concerns and recommended actions taken to resolve them. (Class III)
12.1.8. The licensee shall develop a system that provides 24-hour accessibility between the residential care community, the registered professional nurse, and/or other emergency personnel. (Class I)
12.2. Nursing Services.
12.2.1. A registered professional nurse shall document the following in each resident's individual case record using a complete signature or initials with a complete signature on each page of the record:
12.2.1.a. A monthly progress note in the resident's record as indicated by the needs of the resident to document the status of the resident and any changes in his or her health or welfare; (Class II)
12.2.1.b. Any significant temporary or permanent changes in condition including changes resulting from incidents or accidents; (Class II) and
12.2.1.c. Any verbal or written orders received from a licensed health care professional. (Class I)
12.2.2. The registered professional nurse shall:
12.2.2.a. Provide oversight of the nursing care and services through contact with the licensee and residential care community staff as necessary to ensure appropriate resident care. Visits to the residential care community shall occur at least weekly and be of sufficient duration to perform all required duties; (Class I)
12.2.2.b. Provide overall supervision of the provision of nursing services to residents by ensuring that the services established within the resident's service plan are met and that the resident's physical, mental and social well-being are not compromised; (Class I)
12.2.2.c. Complete a written nursing assessment for each resident with nursing needs within 24 hours following admission and update the assessment at the time of any significant temporary or permanent change in the resident's condition. In the absence of a significant temporary or permanent change in condition, the residential care community shall review the assessment quarterly; (Class I)
12.2.2.d. Coordinate the development of a component of the service plan to meet any identified nursing and medical needs of the resident with the resident and the attending physician or other licensed health care professional. This component shall be completed within seven days after admission and shall be reviewed by the registered nurse at least quarterly or at the time of a significant temporary or permanent change in condition; (Class I)
12.2.2.e. Review training needs of residential care community staff members; (Class II)
12.2.2.f. Provide needed training or recommend to the residential care community appropriate training for staff; (Class II)
12.2.2.g. Provide to the licensee a written record of training provided by the registered nurse to individuals or groups with an outline of the items discussed, the date and time of the session, and signatures of individuals involved in the training; (Class II)
12.2.2.h. Provide overall supervision of medication storage, dispensing systems and disposition; (Class I) and
12.2.2.i. Coordinate admission and discharge planning as it relates to the medical component of resident care. (Class II)
W. Va. Code R. § 71-23-13 Penalties
13.1. Civil Penalties.
13.1.1. The Director, in consultation with the Inspector General, shall administer penalties for violations of this rule and of the W. Va. Code §§16B-9-1, et seq., as specified in W. Va. Code §§16B-9-1, et seq., and this rule.
13.1.2. Upon completion of a report of inspection, the Director, in consultation with the Inspector General, shall determine what, if any, civil penalties are to be imposed pursuant to the West Virginia Code and this rule, and issue citations. The Director, in consultation with the Inspector General, shall issue citations and assess supplemental penalties for failure to correct continuing violations: Provided, That for continued failure to correct a violation of a non-life threatening nature, the Director, in consultation with the Inspector General, shall, prior to issuing a citation with a supplemental penalty, notify the licensee or non-licensed operator by certified mail, return receipt requested, that a citation will be issued with a supplemental penalty on a date to be specified by the Director unless the corrective actions specified by the Director are implemented in an acceptable manner.
13.1.3. All citations shall be in writing and shall include the basis upon which the Director, in consultation with the Inspector General, assessed the penalty and selected the amount of civil penalty.
13.1.4. The name of any resident jeopardized by the violation shall not be specified in the citation.
13.1.5. In both determining to assess a civil penalty and in fixing the amount of the civil penalty to be imposed for violations, the Director, in consultation with the Inspector General, shall consider the gravity of the violation, which shall include:
13.1.5.a. The degree of substantial probability that death or serious physical harm will result and, if applicable, did result from the violation;
13.1.5.b. The severity of serious physical harm most likely to result, and if applicable, that did result from the violation; and
13.1.5.c. The extent to which the provisions of the applicable statutes or rules were violated.
13.1.6. If a licensee or a non-licensed operator does not plan to contest a citation which imposes a penalty, he or she shall submit to the Director, within 10 business days after the issuance of the citation, the total sum of the penalty assessed.
13.1.7. If a licensee or a non-licensed operator desires to contest a citation which imposes a penalty or the date specified for correction of a violation, he or she shall, within four business days after service of the citation or specification of time in which a violation is to be corrected, serve upon the Director, either personally or by registered or certified mail, the licensee's or non-licensed operator's written notice pursuant to Office of Inspector General Procedural Rule, Rules of Procedure for Contested Case Hearings and Declaratory Rulings, W. Va. Code R. §§64-1-1, et seq.
13.1.8. The Inspector General shall, in a civil judicial proceeding, recover any unpaid assessment which: (a) has not been contested under W. Va. Code §16B-9-12 within 30 days of receipt of notice of the assessment; (b) has been affirmed under the provisions of W. Va. Code §16B-9-12 and not appealed within 30 days of receipt of the Board of Review’s final order; or has been affirmed on judicial review, as provided in W. Va. Code §16B-9-13. All money collected by assessments of civil penalties or interest shall be paid into a special resident benefit account. The Director shall apply the money only for the protection of the health or property of residents of facilities operated within the State of West Virginia, including payment for the costs of relocation of residents to other facilities; operation of a residential care community pending correction of deficiencies or closure; and reimbursement of residents for lost personal funds.
13.2. Restrictions; Revocation.
13.2.1. The Director, in consultation with the Inspector General, may place restrictions upon or revoke the current license of a residential care community, if he or she finds evidence of one or more of the following:
13.2.1.a. Lack of financial stability to operate, such as insufficient capital, delinquent accounts, checks returned because of insufficient funds, and nonpayment of taxes, utility expenses and other essential services;
13.2.1.b. The licensee or the administrator of the residential care community has been arrested for, adjudicated, and convicted of any felony or of a misdemeanor relevant for the provision of care in a health care facility or for operating a health care facility;
13.2.1.c. The licensee has been denied or has had a license to operate a health care facility revoked in West Virginia or any other jurisdiction during the previous five years;
13.2.1.d. The licensee has a record of noncompliance with lawful orders of the Office of Health Facility Licensure and Certification or other licensing or certification agency for any jurisdiction in which the applicant has operated, directed or participated in the operation of a health care facility;
13.2.1.e. The licensee or other person in charge of the residential care community refuses entry to the Director’s duly authorized representative for an inspection or survey;
13.2.1.f. The licensee has inappropriately converted for its own use the property of a resident;
13.2.1.g. The licensee has secured property, or a bequest of property, from a resident by undue influence; or
13.2.1.h. The licensee has submitted false information either on the licensure or renewal application forms or during the course of an inspection or survey of the residential care community.
13.2.2. The Director, in consultation with the Inspector General, shall consider all available evidence at the time of the determination, including the history of the residential care community and the applicant in complying with this rule, notices of violations which have been issued to the residential care community and the applicant, findings of surveys and inspections, and any evidence provided by the residential care community, residents, law enforcement officials, and other interested individuals.
13.2.3. In addition to all other actions and penalties specified in this rule, the Director, in consultation with the Inspector General, may ban new admissions by order until further notice by the Director or reduce the bed capacity of the residential care community or both, when on the basis of inspection, he or she determines that:
13.2.3.a. There is an immediate and serious threat to one or more residents; or
13.2.3.b. There are poor care outcomes resulting in an avoidable decline in a resident's condition; or
13.2.3.c. There has been a decline in the functional abilities of one or more residents resulting from neglect or abuse; and
13.2.3.d. An admission ban or reduction in bed capacity or both would place the residential care community in a position to render adequate care.
13.2.4. The Director, in consultation with the Inspector General, shall notify a licensee of an admissions ban or reduction in bed capacity or both, stating the terms of the order, the reasons for the order and the date set for compliance.
13.2.5. In addition to all other actions and penalties specified by law and this rule, the Director, in consultation with the Inspector General, may revoke a license which has been obtained through the use of fraud or subterfuge.
W. Va. Code R. § 71-23-14 Administrative Due Process
14.1. Administrative due process and remedies for actions taken under W. Va. Code §§16B-9-1, et seq., and this rule shall be in accordance with the Office of Inspector General, Procedural Rule, Rules of Procedure for Contested Case Hearings and Declaratory Rulings, W. Va. Code R. §§64-1-1, et seq.
Series 24 Syringe Services Program Licensure
W. Va. Code R. § 71-24-1 General
1.1. Scope. - This legislative rule establishes standards and procedures for the licensure and regulation of syringe services programs in the state of West Virginia.
1.2. Authority. - W. Va. Code §16-64-7.
1.3. Filing Date. - April 8, 2026.
1.4. Effective Date. - May 1, 2026.
1.5. Sunset Provision. - This rule shall terminate and have no further force or effect upon August 1, 2031.
1.6. Applicability - This rule applies to any person, partnership, association, or corporation that operates a syringe services program as part of a harm reduction program. This rule does not apply to any person, partnership, association, or corporation that operates a harm reduction program that does not provide syringe services program.
1.7. Purpose. - The purpose of this rule is to ensure that all West Virginia syringe services programs conform to a common set of minimum standards and procedures to ensure the care, service, safety, and welfare of participants therein.
1.8. Enforcement. - This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of W. Va. Code §§16-64-1, et seq., and this rule, except where otherwise stated.
W. Va. Code R. § 71-24-2 Definitions
2.1. Definitions incorporated by reference. - Those terms defined in W. Va. Code §§16-64-1, et seq., are incorporated herein by reference.
2.2. 1:1 Exchange Model -- A practice of restricting syringe access by providing a participant only the number of syringes that the participant returns to the syringe services program for disposal either by counting or by weight.
2.3. Adverse Event or Incident -- An event involving an immediate threat to the care or safety of an individual, either program staff member, contracted individual, volunteer, or participant; the possibility of serious operational or personnel problems within the syringe services program; or the potential to undermine public confidence in the syringe services program.
2.4. Bloodborne pathogens -- Pathogenic microorganisms that are present in human blood and can cause disease in humans; including, but not limited to, hepatitis B virus, hepatitis C virus, and human immunodeficiency virus.
2.5. Bureau for Public Health -- The West Virginia Bureau for Public Health within the West Virginia Department of Health.
2.6. Director – The Director of the Office of Health Facility Licensure and Certification.
2.7. Full Array of Harm Reduction Services -- As used in this rule and in W. Va. Code §16-64-10(d), “full array of harm reduction services” means those harm reduction services stated in W. Va. Code §16-64-3(a).
2.8. Injection Equipment -- Equipment is limited to cottons, water, and alcohol wipes.
2.9. Inspector General – The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1, or his or her designee.
2.10. Office of Health Facility Licensure and Certification – The West Virginia Office of Health Facility Licensure and Certification within the Office of Inspector General.
2.11. Opioid Antagonist -- A drug that blocks opioids’ reception by attaching to the opioid receptors without activating them thereby causing no opioid effect and blocking full agonist opioids.
2.12. Participant -- An individual who receives services or supports, or both, from a syringe services program or harm reduction program, or both, under this rule.
2.13. Participant Confidentiality Protocols -- Written protocols that strictly limit the disclosure of participant identification information.
2.14. Plan of Correction -- A written description of the actions the syringe services program intends to take to correct and prevent the reoccurrence of violations of a rule or policy identified by the Office of Health Facility Licensure and Certification during an investigation, inspection, or survey.
2.15. Viral Hepatitis -- Any of the forms of hepatitis caused by a virus, including hepatitis A virus, hepatitis B virus (HBV), and hepatitis C virus (HCV).
W. Va. Code R. § 71-24-3 Licensure
3.1. General Licensure Provisions.
3.1.1. No person, partnership, association, or corporation may operate a syringe services program in the state of West Virginia without first obtaining a license.
3.1.2. A license is valid only for the location and persons named and described in the application. Mobile site applications shall list all places the mobile site locates itself.
3.1.3. Each syringe services program shall be licensed separately, regardless of whether the program is operated under the same business name or management as another syringe services program.
3.1.3.a. Each fixed site location shall be licensed separately.
3.1.3.b. Each mobile site shall be licensed separately. Each mobile site may encompass multiple places within the program’s service area.
3.1.4. A license is not transferable or assignable.
3.1.5. If the ownership of a syringe services program changes, the new owner shall notify the Director within 10 days and immediately apply for a new license. The new owner’s application for a license has the effect of a valid license for three months from the date the application is received by the Director.
3.1.6. The syringe services program shall notify the Director in writing 30 days prior to a change in the name or location of the program and submit an application form for a license amendment.
3.1.7. In the event a public health emergency or emergency community need is identified by a currently licensed syringe services program, the program shall immediately contact the Office of Health Facility Licensure and Certification. The Office of Health Facility Licensure and Certification shall develop a policy for such emergency situations. This process shall not be used in lieu of licensing each location separately and is not a substitute for a syringe services program creating an emergency plan as described in section 5.3.
3.1.8. A licensure survey may be conducted periodically during the course of the annual licensing term.
3.1.9. The Director or his or her designee may enter the premises of any practice, office, or facility if the Director has reasonable belief that it is being operated and maintained as a syringe services program without a license.
3.1.10. If the owner or operator, or program administrator of a licensed syringe services program or of any other unlicensed practice, office, or facility which the Director has reasonable belief that it is being operated as a syringe services program refuses entry pursuant to this rule, the Inspector General shall petition the Circuit Court of Kanawha County for an inspection warrant.
3.1.11. If the Director finds on the basis of an inspection that any person, partnership, association, or corporation is operating as a syringe services program without a license, the syringe services program shall apply for a license within 14 days of the date of notice from the Director.
3.1.12. A syringe services program that fails to apply for a license is subject to the penalties established by sections 13 and 14 of this rule.
3.1.13. A syringe services program shall surrender an expired, revoked, or otherwise invalid license to the Director upon written demand.
3.2. Initial License.
3.2.1. An applicant shall submit a completed application to the Director, on a form prescribed by the Director. A non-refundable fee required by section 3 of this rule shall be submitted with the application.
3.2.1.a. Any existing syringe services program, as of the effective date of W. Va. Code §§16-64-1, et seq., which offers or refers for the full array of harm reduction services may continue operation and shall have until January 1, 2022, to come into compliance with the provisions of W. Va. Code §§16-64-1, et seq., and this rule and apply for licensure.
3.2.1.b. Any existing syringe services program, as of July 9, 2021, which does not offer or refer for the full array of harm reduction services must cease and desist from offering all syringe services and operating as a syringe services program. These syringe service programs may continue in operation for the sole purpose of referring current participants to other syringe services programs.
3.2.1.c. Any new syringe services program shall apply for an initial license not less than 30 days and not more than 60 days before the syringe services program begins operation as part of a harm reduction program.
3.2.2. The initial application shall include:
3.2.2.a. The name of the program;
3.2.2.b. A description of the harm reduction program the syringe services program is associated with and the full array of harm reduction services being provided in accordance with W. Va. Code §16-64-3(a);
3.2.2.c. Contact information for the program administrator of the harm reduction program, including an email address;
3.2.2.d. Description of the hours of operation, including the specific days the syringe services program is open, opening and closing times, and the frequency of syringe exchange services;
3.2.2.e. Description of staffing, including the number of staff, titles of positions, and basic description of each position’s functions;
3.2.2.f. Location of the syringe services program;
3.2.2.g. Specific description of the applicant’s ability to refer to or facilitate entry into substance use disorder treatment;
3.2.2.h. Specific description of the applicant’s ability to encourage usage of medical care and mental health services as well as social welfare and health promotion; and
3.2.2.i. Written statement of support from a majority of the members of the county commission and a majority of the members of a governing body of a municipality in which it is located or is proposing to locate.
3.2.3. The syringe services program shall update program administrator contact information if any changes occur by contacting the Office of Health Facility Licensure and Certification.
3.2.4. The Director shall issue an initial license only after a review of the application and required policies and procedures is completed which finds the syringe services program complies with those requirements.
3.2.5. If the application is incomplete in required information or documentation, the application shall be denied and returned to the applicant.
3.2.6. If the applicant fails to comply with the program requirements specified in W. Va. Code §16-64-3, the application shall be denied and returned to the applicant.
3.2.7. If an application is denied, the syringe services program may reapply for an initial license by submitting a new application together with the applicable fee.
3.2.8. An initial license for a syringe services program is valid for one year.
3.3. Renewal License.
3.3.1. An applicant shall submit a completed application to the Director, on a form prescribed by the Director, 60 days prior to the expiration date of the current license. The renewal application shall contain updated information and attachments as were required in the initial application. A non-refundable fee required by section 3 of this rule shall be submitted with the application.
3.3.2. The Director shall issue a renewal license when it is found after a review of the application and required policies and procedures is completed which finds the syringe services program complies with those requirements.
3.3.3. A renewal license for a syringe services program is valid for one year.
3.4. License Fees and Inspection Costs.
3.4.1. All applications for an initial or renewal syringe services program license shall be accompanied by a non-refundable license fee. The amounts for the initial and renewal fees are as follows:
3.4.1.a. Initial license fee - $250; and
3.4.1.b. Renewal license fee - $50.
3.5. Denial of License.
3.5.1. The Director may deny an application for an initial or renewal license if:
3.5.1.a. The applicant does not submit all information and documentation required in W. Va. Code §16-64-2;
3.5.1.b. The applicant does not comply with the syringe services program requirements;
3.5.1.c. The syringe services program will not permit an inspection or survey to proceed or will not permit in a timely manner access to records or information deemed relevant by the Director; or
3.5.1.d. The syringe services program has made misrepresentations in obtaining a license.
3.5.2. If the Director determines not to issue a license, the Director shall notify the applicant in writing of the denial and the basis for the decision. Following the denial, the syringe services program must follow closure procedures in section 13 of this rule.
W. Va. Code R. § 71-24-4 Inspections and Plans of Correction
4.1. The Director or his or her designee shall conduct unannounced inspections of a syringe services program for cause if the Director has received a complaint about the program or has reason to believe that the program may be operating in violation of federal or state statutes, rules, or regulations.
4.2. Inspections may include interviews with owners and staff; interviews of participants with participant’s consent; review of program records; observation of service delivery; review of program documents and policies; and review of any other documents necessary for the determination of compliance with this rule and W. Va. Code §§16-64-1, et seq.
4.3. The syringe services program shall ensure immediate access to all participant and program records upon request of the Director or his or her designee. If access is denied, a judge of any court of record in this state having criminal jurisdiction, and upon proper oath or affirmation showing probable cause, may issue administrative or inspection warrants for the purpose of conducting inspections and seizures of property appropriate to the inspections.
4.4. At the time of any onsite investigation activities, the investigator shall notify the syringe services program administrator at the syringe services program of the general reason for the investigation.
4.5. The Director, in consultation with the Inspector General, has the power to subpoena documents, when the Director has any cause to believe that any provision of this rule or West Virginia Code §§16-64-1, et seq., has been violated, and
4.5.1. That such violation may have resulted in harm to a known person; or
4.5.2. That such violation or pattern of violations may endanger the health, safety, or welfare or any person.
4.5.3. Upon a finding of the requisite cause, the subpoena may be issued against any licensee or permittee under the jurisdiction of the Director, even if said licensee or permittee is not suspected of the violation being investigated.
4.5.4. Upon failure of a person without lawful excuse to obey a subpoena to provide documents, and upon reasonable notice to all persons affected thereby, the Director, in consultation with the Inspector General, may apply to Circuit Court of Kanawha County or the county where the documents are located for an order compelling compliance.
4.6. Within 15 working days of the investigation, the Director shall provide to the program administrator at a syringe services program a written report of the results of the investigation. The report shall specify any deficiency found and the statute or rule that forms the basis for each deficiency.
4.7. Within 10 working days after receipt of the inspection report, the program administrator of a syringe services program shall submit to the Director for approval a written plan to correct all deficiencies that are in violation of this rule or statute. The plan of correction shall specify:
4.7.1. Any action taken or procedures proposed to correct the deficiencies, and prevent their reoccurrence;
4.7.2. The date of completion of each action taken or to be taken; and
4.7.3. The signature of the program administrator, or his or her designee, or other executive officer of the syringe services program.
4.8. The proposed plan of correction shall be approved, modified, or rejected by the Director in writing.
4.9. The Director shall state the reasons for modification or rejection of any plan of correction.
4.10. The program administrator shall submit a revised plan of correction to the Director within 10 working days of receipt of a rejection by the Director.
4.11. The syringe services program shall immediately correct a violation that severely risks the health or safety of a participant, program staff member, contracted individual, or volunteer.
4.12. The Director shall determine if satisfactory corrections have been made and advise the program administrator of any compliance or continued deficiencies in writing.
4.13. The Director, in consultation with the Inspector General, may impose a civil money penalty, suspend, limit, or revoke a license or take such other action as deemed appropriate to address any violations or deficiencies. In the event the Director determines that the continued operation of the syringe services program is a threat to the health, welfare, and safety of its participants, the Director, in consultation with the Inspector General, may issue an order immediately closing a syringe services program pursuant to applicable administrative procedures.
4.14. Any person may file a complaint with the Director alleging violation of applicable laws, rules, or policies by a syringe services program. A complaint shall identify the syringe services program by name and state in detail the nature of the complaint.
4.15. If and upon completion of the investigation and approved plan of correction, the Director shall notify the complainant whether the allegations have been substantiated and how to obtain a copy of the report.
4.16. Nothing contained in this section or rule shall be construed to require or permit the public disclosure of confidential medical, social, personal, or financial records of any participant or program, nor any information required to be kept confidential by state or federal law.
W. Va. Code R. § 71-24-5 Organization and Management
5.1. Each syringe services program shall identify a program administrator and disclose other employees and their duties.
5.2. Program Administrator.
5.2.1. The administrator of a syringe services program shall have at a minimum one of the following:
5.2.1.a. Any degree in an appropriate area of study and a minimum of one year of experience in the fields of public health, substance use disorders, behavioral health, health care administration, peer recovery programs, nursing, or harm reduction; or
5.2.1.b. Four years of experience in the fields of public health, substance use disorders, behavioral health, health care administration, peer recovery programs, nursing, or harm reduction.
5.2.2. The administrator is responsible for the day-to-day operation of the syringe services program in a manner consistent with the laws and regulations of the United States Department of Health and Human Services and the laws and rules of the state of West Virginia.
5.2.3. Duties of the administrator include:
5.2.3.a. Contribution to the development of policies and procedures for operation of the program;
5.2.3.b. Maintenance and security of the facility;
5.2.3.c. Employment, credentialing, evaluation, scheduling, training, and management of staff;
5.2.3.d. Protection of participant rights;
5.2.3.e. Responsible for compliance with all requirements related to the licensing and operation of the syringe services program;
5.2.3.f. Security and safe handling of sterile and non-sterile syringes and injection equipment;
5.2.3.g. Contribution to the management of the program budget; and
5.2.3.h. Implementation of program policies and procedures.
5.2.4. Within 90 days after the withdrawal or termination of the program administrator, the owner or owners of the syringe services program shall notify the Director of the identity of another program administrator for the syringe services program. An interim program administrator shall assume the duties of the program administrator on a temporary basis, not to exceed 120 days, until a new program administrator is identified and begins work at the syringe services program.
5.3. Emergency Planning and Response.
5.3.1. The syringe services program shall have procedures in place for responding to accidents, serious illness, fire, medical emergencies, floods, natural disasters, and other life-threatening situations that:
5.3.1.a. Address the needs of any special population served by the syringe services program;
5.3.1.b. Specify evacuation procedures including an evacuation site, parties to notify, and emergency items to take when evacuating;
5.3.1.c. Describe relocation plans for the syringe services program if it becomes necessary; and
5.3.1.d. Specify appropriate responses to medical emergencies.
W. Va. Code R. § 71-24-6 Service Environment and Operation
6.1. Each syringe services program shall have:
6.1.1. Programmatic guidelines including a sharps disposal plan, a staff training plan, data collection and program evaluation plan, and a community relations plan;
6.1.2. Sufficient space and adequate equipment for the provision of or referral for all services specified in the syringe services program’s description of harm reduction services offered pursuant to W. Va. Code §16-64-3;
6.1.3. Clean and safe participant treatment areas;
6.1.4. A secure room and lockable equipment for physical participant records or appropriate security mechanisms for electronic records, or both;
6.1.5. Policies and procedures regarding the confidentiality of all information in participant records which specify the requirements for access to the secure room and to electronic records, including levels of access; and
6.1.6. Sanitary and secure disposal areas.
6.2. Participant records may be stored offsite. However, participant records must be readily available upon request from the Director, or his or her designee.
6.3. Service Delivery Plan. Each syringe services program shall have a service delivery plan that shall include:
6.3.1. Sterile syringes and harm reduction services for participants;
6.3.2. HIV and viral hepatitis prevention education services for participants;
6.3.3. Safe recovery and disposal of non-sterile syringes and sharps waste from participants;
6.3.4. HIV and hepatitis screening;
6.3.5. Participant confidentiality protocol;
6.3.6. Screening for sexually transmitted infections; and
6.3.7. Education and supplies for safer sex practices.
6.4. All syringe services programs must meet all requirements of applicable federal, state, and local regulatory or oversight agencies. All syringe services programs must comply with its own policies and procedures.
6.5. Participants Accompanied by Minor Children.
6.5.1. Minor children should not be present during the syringe exchange and shall be left in the care of another responsible adult during the syringe exchange portion of the participant’s visit.
6.5.2. Program staff members or contracted individuals shall at no time be responsible for a participant’s minor child.
6.6. Data Collection and Program Evaluation Plan. Each syringe services program shall develop and implement a data collection program evaluation plan that:
6.6.1. Incorporates evaluation data into program design;
6.6.2. Specifically outlines the method and process for collecting and documenting data elements;
6.6.3. Uses the Bureau for Public Health’s designated data reporting tool to provide required data elements;
6.6.4. Outlines the method and process for quantitative assessment of participants; and
6.6.5. Outlines the method and process for quality improvement.
6.7. Community Relations Plan. Each syringe services program shall have a community relations plan that:
6.7.1. Records adverse incidents and positive interactions between local law enforcement or first responders and program staff members, contracted individuals, volunteers, and participants in their role as program participants;
6.7.2. Documents concerns and positive feedback expressed by participants, community members, neighborhood associations, or local law enforcement officials; and
6.7.3. Documents steps the syringe services program and harm reduction program have taken to address any reasonable concerns.
W. Va. Code R. § 71-24-7 Staff; Training and Credentialing of Staff
7.1. All employees, volunteers, contracted individuals, and associates of a syringe services program are subject to the restrictions, prohibitions, and requirements established in this rule.
7.2. Professional Medical Staff.
7.2.1. The syringe services program may employ, contract with, and use physicians and other licensed health care professionals working within their scope of practice who have received sufficient training and experience in accordance with program policies and procedures developed by the syringe services program.
7.2.2. All physicians and licensed health care professionals employed or contracted by the syringe services program shall be actively licensed in West Virginia.
7.2.3. The syringe services program must ensure that there is trained staff on duty at all times who are proficient in cardiopulmonary resuscitation and administration of opioid antagonist.
7.3. Unlicensed Program Staff, Contracted Individuals, and Volunteers.
7.3.1. A syringe services program may employ or utilize unlicensed staff members, contracted individuals, and volunteers to assist in the operation of the program.
7.3.2. The syringe services program policies and procedures shall specify the job descriptions and responsibilities of unlicensed staff members, contracted individuals, and volunteers. Documentation of the responsibilities, training, and other obligations of unlicensed staff members, contracted individuals, or volunteers shall be included in the personnel file of the staff members or volunteers.
7.3.3. All unlicensed staff members, contracted individuals, and volunteers shall receive appropriate supervision and shall be provided assistance and directions as to their responsibilities and duties.
7.4. Staff Training and Credentialing.
7.4.1. The syringe services program shall ensure that all physician assistants, advanced practice registered nurses, contracted individuals, and all other licensed or certified professional care providers comply with the credentialing requirements of their respective professions, obtain and maintain current licenses, and complete all continuing education requirements of their respective licensing boards and this rule.
7.4.2. All program staff members, contracted individuals, and volunteers shall complete initial and continuing education and training that is specific to their job function and is consistent with the requirements of applicable federal and state laws, rules, regulations, and guidelines. Documentation of all completed education and training courses or programs shall be maintained in the personnel file of each staff member or volunteer. Training of volunteers shall be specific to their job function. Training of program staff members and contracted individuals shall include, at a minimum:
7.4.2.a. The services and eligibility requirements of the syringe services program and the harm reduction program;
7.4.2.b. Overview of harm reduction philosophy and harm reduction model used the by the harm reduction program and syringe services program;
7.4.2.c. The services provided by the syringe services program and the harm reduction program;
7.4.2.d. The syringe services program’s policies and procedures concerning syringe exchange transactions and other operating policies and procedures;
7.4.2.e. Disposal of infectious waste and syringe safety;
7.4.2.f. Sharps waste disposal education that ensures familiarity with state law regulating proper disposal of home-generated sharps waste;
7.4.2.g. Procedures for obtaining or making referrals for participants;
7.4.2.h. Hierarchy of risks associated with sexual and drug-using behaviors and risk reduction practices for those behaviors;
7.4.2.i. Education and demonstration of safer injection practices;
7.4.2.j. Opioid antagonist administration;
7.4.2.k. Overdose prevention and recognition and response for all program staff members, contracted individuals, and volunteers;
7.4.2.l. Overview of community concerns and outreach strategies;
7.4.2.m. Cultural diversity and sensitivity to protected classes under state and federal law; and
7.4.2.n. Completion of attendance logs for participation in mandatory trainings.
7.4.3. Program staff members, contracted individuals, and volunteers shall be trained annually on infection control procedures and the importance of reporting occupational exposure.
7.4.4. The syringe services program shall develop detailed job descriptions for each program staff member, including contracted individuals, that clearly define the education, training, qualifications, and competencies needed to provide specific service.
7.4.5. Upon hire of any new clinical staff member or contracted individual, the syringe services program shall provide orientation as to the person’s primary job responsibilities, including, but not limited to, confidentiality requirements, on the first day of employment. Documentation of the completed orientation shall be included in the personnel file of each staff member.
7.4.6. The syringe services program shall maintain confidential individual personnel files for every staff member, including contracted individuals. Personnel files shall contain, at a minimum:
7.4.6.a. The application for employment, contract, or request to work as a volunteer;
7.4.6.b. Documentation of the date of employment;
7.4.6.c. Identifying information and emergency contacts;
7.4.6.d. Documentation of completion of orientation, trainings, and continuing education;
7.4.6.e. Documentation of all licenses, certifications, or other credentials;
7.4.6.f. Documentation relating to performance, supervision, disciplinary actions, and termination summaries; and
7.4.6.g. Detailed job descriptions.
W. Va. Code R. § 71-24-8 Participant Rights
8.1. Each syringe services program shall have policies and procedures that guarantee the following rights to participants:
8.1.1. To be informed, both verbally and in writing, of program rules and regulations and participant’s rights and responsibilities;
8.1.2. To receive services provided in a fair and impartial manner free from unlawful discriminatory practices pursuant to W. Va. Code §16B-17-9;
8.1.3. To be informed about the financial aspects of any services provided by the harm reduction program and the syringe services program;
8.1.4. To ensure confidentiality in accordance with federal regulations, 42 C.F.R. Part 2, and the Health Insurance Portability and Accountability Act of 1996, as amended;
8.1.5. To be informed of the extent of confidentiality, including the conditions under which information can be released without consent, the use of identifying information for the purpose of program evaluation and statutory requirements for reporting abuse;
8.1.6. To give informed consent prior to being involved in research projects and the right to retain a copy of the informed consent form; and
8.1.7. To inform each participant about all service procedures, services, and other policies and procedures throughout the course of treatment.
8.2. The syringe services program shall notify participants at least 30 days in advance of its intent to permanently change service hours.
8.3. The syringe services program shall provide notice of how to file a complaint with the Office of Health Facility Licensure and Certification, which shall be displayed in the participant service area in a conspicuous place and easily available to participants. The notice shall include the Office of Health Facility Licensure and Certification’s telephone number and website.
8.4. The syringe services program shall have policies and procedures that address safety and security issues for participants and staff, including training staff to handle physical or verbal threats, acts of violence, and inappropriate behavior or other escalating and potentially dangerous situations, with emphasis on when assistance needs to be summoned.
W. Va. Code R. § 71-24-9 Provision of Services
9.1. Participant Requirements.
9.1.1. Participants in the syringe services program must be at least 18 years old. Other harm reduction services may be offered to individuals under 18 years old where permitted and appropriate.
9.1.2. Participants in the syringe services program must present proof of West Virginia identification upon dispensing syringes and injection equipment.
9.1.3. Proof of West Virginia identification accepted by the syringe services program at each visit shall include one of the following forms of identification:
9.1.3.a. West Virginia Division of Motor Vehicles-issued driver’s license;
9.1.3.b. West Virginia Division of Motor Vehicles-issued learner’s/instruction permit;
9.1.3.c. West Virginia Division of Motor Vehicles-issued photo identification card;
9.1.3.d. Photo identification card from a West Virginia school or employer;
9.1.3.e. United States Military identification card of an active duty or retired member;
9.1.3.f. United States passport; or
9.1.3.g. West Virginia Division of Corrections and Rehabilitation identification card.
9.1.3.h. If a participant does not have a West Virginia identification listed in subdivision 9.1.3.a. to 9.1.3.g. of this rule, a participant shall provide two of the following forms of identification:
9.1.3.h.1. United States social security card;
9.1.3.h.2. A utility bill, which include phone, cell phone, electric, gas, or water, with the participants name and current address;
9.1.3.h.3. Automobile registration with the participant’s name and current address;
9.1.3.h.4. Automobile insurance card with the participant’s name and current address;
9.1.3.h.5. West Virginia voter’s registration card with the participant’s name and current address;
9.1.3.h.6. Checking account deposit slip or bank statement with the participant’s name and current address;
9.1.3.h.7. Paycheck stub or W-2 form with the participant’s and current address;
9.1.3.h.8. Health care insurance card with the participant’s name;
9.1.3.h.9. Social services benefits identification card with photo issued by a West Virginia governmental agency;
9.1.3.h.10. Weapons or gun permit issued by a federal or state governmental agency; or
9.1.3.h.11. Veterans’ Universal Access Identification Card.
9.1.4. A syringe services program may create a program specific identification card which shall include a photograph of the participant to be used for proof of West Virginia identification after the initial enrollment with the program. Initial enrollment with the program shall include verification of West Virginia identification as specified in subsection 9.1.3. of this rule.
9.2. Program Enrollment.
9.2.1. A syringe services program shall develop and implement an enrollment procedure for participants.
9.2.2. Initial enrollment in a syringe services program may occur by an individual participant one time in a 12 month consecutive period. During the initial enrollment, a syringe services program may provide up to 10 syringes if the participant has none. This shall be tracked and reported separately on the program’s annual report. This number will not count towards the program’s goal of a 1:1 exchange model. If the participant has syringes to exchange at the initial enrollment, the program shall follow the 1:1 exchange model.
9.2.3. Each participant shall be assigned a unique participant code that cannot be duplicated.
9.2.4. Information to be requested during enrollment into the syringe services program includes, at a minimum:
9.2.4.a. Participant initials;
9.2.4.b. Birth year;
9.2.4.c. Zip code or area of current residence
9.2.4.d. Sex or gender;
9.2.4.e. Race or ethnicity;
9.2.4.f. Preferred language;
9.2.4.g. Pregnancy status;
9.2.4.h. Information related to access to other services; and
9.2.4.i. Information related to social determinants of health.
9.2.5. During enrollment, syringe services policies and procedures should be reviewed with the participant.
9.3. Harm Reduction Services.
9.3.1. A syringe services program shall be part of a harm reduction program and offer or refer for the harm reduction services described herein. A syringe services program shall not offer syringe services only.
9.3.2. Harm reductions services that must be offered, at a minimum, include:
9.3.2.a. HIV, hepatitis, and sexually transmitted diseases screening;
9.3.2.b. Vaccinations;
9.3.2.c. Birth control and long-term birth control;
9.3.2.d. Behavioral health services;
9.3.2.e. Overdose prevention supplies and education;
9.3.2.f. Syringe collection and sharps disposal;
9.3.2.g. Educational services related to disease transmission;
9.3.2.h. Assistance or referral of a participant to a substance use disorder treatment program;
9.3.2.i. Referral to a health care practitioner for treatment of medical conditions; and
9.3.2.j. Programmatic guidelines including a sharps disposal plan, staff training plan, data collection and program evaluation plans, and community relations plan.
9.4. Syringes Services.
9.4.1. Each visit at the syringe services program shall include an offer for the provision of or referral for harm reduction services from a qualified, licensed health care provider.
9.4.2. A syringe services program shall ensure that a syringe is unique to the syringe services program. Acceptable means for uniquely identifying the syringe to the syringe services program may include, but is not limited to, color codes, labels, or serial numbers or codes. Each program must have a policy identifying what measures are used to uniquely distinguish that program’s syringes.
9.4.3. A syringe services program shall dispense syringes with a goal of a 1:1 exchange model. A syringe services program does not meet the goal of a 1:1 exchange model if their annual report reflects a ratio of 2:1 or higher. Initial enrollment, as described in subsection 9.2.2. of this rule, or community cleanup activity do not count towards this ratio. A syringe services program may substitute weighing the volume of returned syringes rather than a 1:1 exchange model. Weighing returned needles is only permissible if it can be done accurately and in the following manner:
9.4.3.a. Returned syringes shall be contained in a see-through container; and
9.4.3.b. A visual inspection of the see-through container shall take place prior to the returned syringes being weighed.
9.4.4. Syringe Dispensing Plan. A syringe services program shall have a syringe dispensing plan which includes, but is not limited to, the following:
9.4.4.a. Maintaining records of returned syringes by participants for two years;
9.4.4.b. Preventing syringe stick injuries;
9.4.4.c. Tracking the number of syringes dispensed and collected at the syringe services program;
9.4.4.d. Tracking the number of syringes collected as a result of community reports of syringe litter;
9.4.4.e. Eliminating direct handling of sharps waste;
9.4.4.f. Following a syringe stick injury protocol and plan;
9.4.4.g. Dispensing syringes in person to a participant and not via proxy;
9.4.4.h. Maintaining a budget for sharps waste disposal or an explanation if no cost is associated with sharps waste disposal; and
9.4.4.i. Implementing a plan to coordinate with the continuum of care, including requirements set forth in W. Va. Code §16-64-3.
9.5. Syringe Disposal Plan.
9.5.1. The syringe services program shall have policies and procedures governing the disposal of syringes and other medical waste which are designed to maximize the return of non-sterile syringes without increasing the risk of syringe stick injury to program staff members, contracted individuals, volunteers, and participants.
9.5.2. The syringe disposal plan shall include a method to track the number of syringes returned in a manner that eliminates the direct handling of sharps waste and does not interfere with service provision.
9.5.3. The syringe disposal plan shall include a syringe stick injury protocol and plan to ensure that program staff members, contracted individuals, and volunteers are familiar with the protocol.
9.5.4. The syringe disposal plan shall include sharps waste disposal education that ensures program staff members, contracted individuals, volunteers, and participants are familiar with state law regulating the proper disposal of home-generated sharps waste.
9.5.5. The syringe disposal plan shall also include and address a plan for retrieving and the safe disposal of syringe litter found in the community.
9.6. Syringe Litter. A syringe services program shall maintain a program for the public to report syringe litter and shall endeavor to collect all syringe litter in the community.
W. Va. Code R. § 71-24-10 Reports and Records
10.1. Inspection Reports and Records.
10.1.1. The Director shall keep on file a report of any inspection, survey, or investigation of a syringe services program.
10.1.2. Information in reports or records shall be available to the public except for the following:
10.1.2.a. Information regarding complaints and subsequent investigations that is deemed confidential by any provision of this rule or applicable state or federal law;
10.1.2.b. Information of a personal nature from a participant or personnel file; or
10.1.2.c. Information required to be kept confidential by state or federal law.
10.1.3. The Director will not make a report of any investigation public until the syringe services program has the opportunity to review the report, submit a plan of correction, and obtain an approved plan of correction.
10.2. Statistical Reports and Records.
10.2.1. The syringe services program shall file an annual report with the Director on a form prescribed by the Director, which includes, but is not limited to, the following information:
10.2.1.a. The total number of participants served by the syringe services program and the total number of visits;
10.2.1.b. The total number of syringes that were dispensed, collected, and disposed of by the syringe services program and the type of syringes that were dispensed;
10.2.1.c. The total number of syringe stick injuries to non-participants;
10.2.1.d. Statistics regarding the number of individuals entering substance use disorder treatment; and
10.2.1.e. The total number and types of referrals made to substance use disorder treatment and other harm reduction services.
10.3. Incident Reporting and Adverse Events.
10.3.1. Each syringe services program shall develop and implement policies and procedures for documenting, investigating, taking corrective action, and tracking instances of known adverse events or incidents.
10.3.2. If a syringe services program employee, contracted individual, or volunteer has a concern about a participant’s or accompanying minor child’s safety, the syringe services program employee, contracted individual, or volunteer shall follow the policy and procedure of the syringe services program regarding safety concerns and take appropriate action, including, but not limited to, reporting to the appropriate protective services agency.
10.3.3. Incidents or adverse events may include:
10.3.3.a. Known completed participant suicide and suicide attempts;
10.3.3.b. Known participant death or serious injury due to trauma, suicide, or unusual circumstances;
10.3.3.c. Selling drugs or substances on the premises;
10.3.3.d. Harassment or abuse, including physical, verbal, sexual, and emotional, of participants by staff;
10.3.3.e. Theft, burglary, break-in, or similar incident at the syringe services program;
10.3.3.f. Physical violence leading to injury; and
10.3.3.g. Significant disruption of services due to disaster such as fire, storm, flood, or another occurrence.
10.3.4. Incidents or adverse events shall be reviewed on a quarterly basis by the program administrator who may choose to make recommendations and implement changes regarding improvements in the process to prevent further incidents.
10.3.5. The syringe services program shall ensure in the event of an incident or adverse event that:
10.3.5.a. The incident or adverse event is fully documented and appropriately reported to the correct state agencies as necessary;
10.3.5.b. There is prompt investigation and review of the situation surrounding the incident or adverse event;
10.3.5.c. Timely and appropriate corrective action is taken; and
10.3.5.d. Ongoing monitoring of any corrective action takes place until effectiveness of the action is established.
10.3.6. Within seven days of an incident or adverse event, the program shall file a report with the Director consisting of the following:
10.3.6.a. The action or actions implemented to prevent the reoccurrence of the incident or adverse event;
10.3.6.b. The time frames for the action or actions to be implemented;
10.3.6.c. The person or persons designated to implement and monitor the action or actions; and
10.3.6.d. The strategies for the measurements of effectiveness to be established.
W. Va. Code R. § 71-24-11 Quality Assurance and Performance Improvement
11.1. The program administrator is responsible for and shall review at least annually the development, implementation, maintenance, and effective evaluation of quality assessments for performance improvement and effectiveness. This process systematically collects, measures, analyzes, and tracks objective indicators of participant care and services and program operations. This evaluation plan should review whether the syringe services goals are being met and, if goals are not being met, decide if and how to change services to better meet the syringe services program’s goals.
11.2. The syringe services program shall maintain current quality assessment and performance improvement policies that objectively and systematically monitor and evaluate the quality and appropriateness of participant service, evaluate the methods to improve participant service, identify and correct deficiencies within the program, and provide for opportunities to improve the program’s performance and quality of service.
11.3. The syringe services program shall make available to the Director the results of quality assessment and performance improvement information upon request.
11.4. Quality assessment and performance improvement policies and areas of measurement shall include, but not be limited to:
11.4.1. Staff, administrative, and practitioner performance;
11.4.2. Evaluation of services provided;
11.4.3. Incidents and adverse events;
11.4.4. Evaluation of all services provided to participants by the syringe services program and harm reduction program;
11.4.5. Review and verification of staff credentials, training, periodic evaluations, and licensure;
11.4.6. Review of syringe services program policies and procedures;
11.4.7. Infection control issues in regard to universal infection control guidelines set forth by the Centers for Disease Control and Prevention; and
11.4.8. Review of participant outcomes and service outcomes.
W. Va. Code R. § 71-24-12 Infection Control
12.1. The syringe services program shall maintain an effective infection control program that protects the participants and program personnel and volunteers by preventing and controlling infections and communicable diseases.
12.2. The syringe services program shall include the implementation of a nationally recognized system of infection control guidelines.
12.3. The syringe services program shall have an active surveillance and education program for the prevention, early detection, control, and investigation of infections and communicable diseases.
12.4. The syringe services program shall designate a person or persons, with appropriate education and training, as infection control officers to develop and implement policies and governing control of infections and communicable diseases for participants and personnel.
12.5. Employees, contracted individuals, and volunteers should assume that blood and other bodily fluids from participants are potentially infectious and require infection control precautions at all times, including, but not limited to:
12.5.1. Routine use of barriers such as gloves, goggles, closed-toe and closed-heel shoes;
12.5.2. Immediate washing of hands and other skin surfaces after contact with blood or bodily fluids; and
12.5.3. Careful handling and disposal of sharp instruments during and after use.
12.6. Each syringe services program shall have a plan and policies for post-exposure management of employees, contracted individuals, and volunteers.
W. Va. Code R. § 71-24-13 License Denial, Suspension, or Revocation; Closure
13.1. Grounds for Suspension or Revocation.
13.1.1. The Director, in consultation with the Inspector General, may suspend or revoke a syringe services program license issue pursuant to this rule if any provisions of federal or state law or this rule are violated based upon the findings and results of any periodic, complaint, or other inspection and evaluation. Any period of suspension for the license of a syringe services program shall be prescribed by the Director but may not exceed one year.
13.1.2. The Director, in consultation with the Inspector General, may suspend or revoke a syringe services program license for one or more of the following reasons:
13.1.2.a. The Director makes a determination that fraud or other illegal action has been committed by any owner or administrator of the syringe services program;
13.1.2.b. The syringe services program has violated federal, state, or local law relating to licensure, building, health, fire protection, safety, sanitation, or zoning;
13.1.2.c. The written statement of support from a majority of the members of the county commission or a majority of the members of a governing body of a municipality in which a syringe services program is located has been rescinded;
13.1.2.d. The syringe services program has failed or refused to submit reports or make records available as requested by the Director;
13.1.2.e. A syringe services program has refused to provide access to its location or records as requested by the Director;
13.1.2.f. A syringe services program’s administrator has knowingly and intentionally misrepresented actions taken to correct a violation;
13.1.2.g. An owner or program administrator of a syringe services program concurrently operates an unlicensed syringe services program;
13.1.2.h. An owner of a syringe services program knowingly operates, owns, or manages an unlicensed syringe services program that is required to be licensed;
13.1.2.i. The owners of a syringe services program fail to apply for a new license for the program upon a change of ownership and operate the program under the new ownership; or
13.1.2.j. An owner or administrator acquires or attempts to acquire a license for a syringe services program through misrepresentation or fraud or procures or attempts to procure a license for a syringe services program for any other person by making or causing to be made any false representation.
13.2. Effect of Denial, Suspension, or Revocation.
13.2.1. If a license for a syringe services program has been denied, suspended, or revoked, the Director, in consultation with the Inspector General, may stay the effective date of the denial, revocation, or suspension if the program administrator or owner of the syringe services program can show that the stay is necessary to ensure appropriate referral of participants.
13.2.2. If the license of a syringe services program is denied, suspended, or revoked, no person, firm, association, or corporation may operate the program as a syringe services program as of the effective date of the denial, suspension, or revocation. The owner of the syringe services program is responsible for removing all signs and symbols identifying the premises as a syringe services program within 30 days of the date of the denial, suspension, or revocation.
13.2.3. If a license for a syringe services program has been denied, suspended, or revoked the syringe services program must supply, at a minimum, a copy of the following information to the Director;
13.2.3.a. A closure notice to be posted and given to all participants prior to closure;
13.2.3.b. The date the closure notice will be posted;
13.2.3.c. The number of active participants; and
13.2.3.d. Contact information the syringe services program has supplied to participants who may need help locating new services.
13.2.4. Upon the effective date of the denial, suspension, or revocation, the program administrator of the syringe services program shall advise the Director of the disposition of any sterile and non-sterile syringes and injection equipment located on the premises.
13.2.5. If a syringe services program license is denied or revoked, a new application for licensure shall be considered by the Director, if, when, and after the conditions upon which denial or revocation was based have been corrected and evidence of this fact has been furnished. A new license may then be granted after proper inspection has been made and the Director makes a written finding that all provisions of W. Va. Code §§16-64-1, et seq., and this rule have been satisfied.
13.3. Voluntary and Involuntary Closure.
13.3.1. If a syringe services program chooses to voluntarily close, the syringe services program shall provide written notice to the Director no less than 60 days before the anticipated closure date and end of operations. This notice shall include the information required in subsection 13.3.2. of this rule.
13.3.2. In the event of a voluntary or involuntary closure, the syringe services program shall provide to the Director written notice to include the following:
13.3.2.a. A closure notice to be posted and given to all participants prior to closure;
13.3.2.b. The date the closure notice will be posted;
13.3.2.c. The number of active participants; and
13.3.2.d. Contact information the syringe services program has supplied to participants who may need help locating new services.
13.3.3. Upon the closure and end of operations of the syringe services program, the program administrator of the syringe services program shall advise the Director of the disposition of any sterile and non-sterile syringes and injection equipment located on the premises.
13.3.4. The syringe services program shall surrender the physical registration for the syringe services program to the Director within seven days of the last day of operations.
13.3.5. The syringe services program shall provide other information as required by the Director during the closing and ending of operations by the syringe services program. Additional information required by the Director shall be provided to the syringe services program in writing.
13.3.6. The owner of the syringe services program is responsible for removing all signs and symbols identifying the premises as a syringe services program within 30 days of the closure date and end of operations as a syringe services program.
W. Va. Code R. § 71-24-14 Penalties and Equitable Relief
14.1. Grounds for Penalties and Injunctions.
14.1.1. Any person, partnership, association, or corporation that establishes, conducts, manages, or operates a syringe services program without first obtaining a license therefore or which violates any provisions of W. Va. Code §§16-64-1, et seq., or this rule shall be assessed a civil money penalty by the Director, in consultation with the Inspector General, in accordance with this rule.
14.1.2. Each day of continuing violation after notification of the infraction shall be considered a separate violation.
14.1.3. If the syringe services program fails to timely file reports required by section 10 of this rule and W. Va. Code §16-64-7, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $500 per day.
14.1.4. If the syringe services program’s owner or program administrator, or both, knowingly and intentionally misrepresents actions taken to correct a violation, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $5,000, and deny or revoke the syringe services program’s license.
14.1.5. If an owner of a syringe services program concurrently operates an unlicensed syringe services program, the Director, in consultation with the Inspector General, may impose a civil money penalty upon the owner or program administrator, or both, not to exceed $2,500 per day.
14.1.6. If the owner of a syringe services program that requires a license under W. Va. Code §§16-64-1, et seq., fails to apply for a new license for the syringe services program upon a change of ownership and operates the syringe services program under the new ownership, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $2,500.
14.1.7. If a syringe services program knowingly operates, owns, or manages an unlicensed syringe services program that is required to be registered pursuant to W. Va. Code §§16-64-1, et seq., obtains a license to operate a syringe services program through misrepresentation or fraud; procures or attempts to procure a license for a syringe services program for any other person by making or causing to be made any false representation, the Director, in consultation with the Inspector General, may assess a civil money penalty of not more than $10,000. The penalty may be in addition to or in lieu of any other action that may be taken by the Director, in consultation with the Inspector General, or any other board, court, or entity.
14.2. In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the Director, in consultation with the Inspector General, shall consider the following factors:
14.2.1. The gravity of the violation, including the probability that death or serious physical or emotional harm to a participant has resulted, or could have resulted, from the syringe services program’s actions or the actions of the program administrator or any employee, contracted individual, or volunteer associated with the syringe services program, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;
14.2.2. What actions, if any, the program administrator, took to correct the violations;
14.2.3. Whether there were any previous violations at the syringe services program; and
14.2.4. The financial benefits that the syringe services program derived from committing or continuing to commit the violation.
14.3. Notwithstanding the existence or pursuit of any other remedy, the Inspector General, or his or her designee, may, in the manner provided by law, maintain an action in the name of the State for an injunction against any person, partnership, association, or corporation to restrain or prevent the establishment, conduct, management, or operation of any syringe services program or violation of any provisions of this rule without first obtaining a license therefore in the manner hereinbefore provided.
14.3.1. The Inspector General, or his or her designee, may also seek injunctive relief if the establishment, conduct, management, or operation of any syringe services program, whether licensed or not, jeopardizes the health, safety, or welfare of any or all of its participants.
14.4. Upon finding that a licensed professional has violated the provisions of this rule, the Director shall provide notice of the violation to the applicable professional licensing board.
W. Va. Code R. § 71-24-15 Administrative Due Process
15.1. Before any syringe services program license is denied, suspended, penalized, or revoked, written notice shall be given to the program administrator of the syringe services program, stating the grounds of the denial, suspension, penalty, or revocation and the date set for any enforcement action and the location to which it applies. The notice shall also include the remedial measures the syringe services program shall take, if any, to consider reinstatement or removal of suspension of the license and the due process rights of the syringe services program.
15.1.1. The notice shall be sent by electronic mail to the program administrator at the email address provided to the Office of Health Facility Licensure and Certification or as updated by the syringe services program with the Office of Health Facility Licensure and Certification.
15.1.2. Within 30 days of receipt of the notice, the owner or program administrator may submit a request for an administrative hearing to address and resolve the findings.
15.1.3. The syringe services program and its owner shall be entitled to be represented by legal counsel at the administrative hearing at their own expense.
15.1.4. All of the pertinent provisions of W. Va. Code §§29A-5-1, et seq., and W. Va. Code R. §§69-1-1, et seq., shall apply to and govern any hearing authorized by this rule.
15.1.5. If an owner fails to request an administrative hearing within the time frame specified, he or she shall be subject to the full penalty imposed.
15.1.6. The filing of a request for an administrative hearing does not stay or supersede enforcement of the final decision or order of the Director. The Director, in consultation with the Inspector General, may, upon good cause shown, stay such enforcement.
W. Va. Code R. § 71-24-16 Administrative Appeals and Judicial Review
16.1. Any owner of a syringe services program who disagrees with the final administrative decision as a result of the administrative hearing may, within 30 days after receiving notice of the decision, appeal the decision to the West Virginia Intermediate Court of Appeals.
16.2. The filing of a petition for appeal does not stay or supersede enforcement of the final decision or order of the Board of Review. An appellant may apply to the court for a stay of or to supersede the final decision or order.
16.3. West Virginia Intermediate Court of Appeals may affirm, modify, or reverse the final administrative decision. No court has jurisdiction to affirm, modify, or reverse a decision of the Board of Review if the syringe services program failed to request an administrative hearing with the Board of Review in the time frame allowed. The owner or owners, or the Inspector General, may appeal the court’s decision to the West Virginia Supreme Court of Appeals.
Series 25 Behavioral Health Centers Licensure
W. Va. Code R. § 71-25-1 General
1.1. Scope. -- This rule establishes general standards and procedures for the licensure of behavioral health services and supports under the provisions of W. Va. Code §27-1A-7, §27-9-1, et seq., and related federal and state codes.
1.2. Authority. -- W. Va. Code §27-9-1 and §27-17-3.
1.3. Filing Date. – April 8, 2026.
1.4. Effective Date. -- May 1, 2026.
1.5. Sunset Date – This rule shall terminate and have no further force or effect on August 1, 2031.
1.6. Purpose -- These standards are the basis for the licensing and approval of behavioral health centers providing services and supports in the state of West Virginia. Licenses are issued if the standards and applicable rules and regulations are met. The purpose is to protect the health, safety, and wellbeing of consumers receiving care from behavioral health centers; to regulate the behavioral health centers through the formulation, application, and enforcement of licensing requirements; and to ensure the provision of services and supports that are individualized and person-centered.
W. Va. Code R. § 71-25-2 Application and Enforcement
2.1. Application. -- The core requirements of sections 1 through 13 of this rule apply to all behavioral health centers, both public and private. Each behavioral health center included in this rule shall comply with core requirements in addition to specialized modules as applicable to each program.
2.2. This rule contains the requirements to obtain a license to operate as a behavioral health center providing behavioral health services and supports for consumers in West Virginia.
2.3. This rule applies equally to profit, nonprofit, publicly-funded, and privately-funded facilities.
2.4. Enforcement. This rule is enforced by the Office of Inspector General or his or her designee. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule, except where otherwise stated.
2.5. Exemptions. -- The following programs or services are exempt from the requirements of this rule:
2.5.1. A program not providing behavioral health services;
2.5.2. Services provided through a Medicaid self-directed, community-based waiver;
2.5.3. Outpatient services approved by the Centers for Medicare and Medicaid Services (CMS) at federally designated locations;
2.5.4. Hospitals operating within the scope of their license under W. Va. Code §16B-3-1, et seq.;
2.5.5. Individuals or groups of behavioral health or health practitioners functioning within the scope of their license under chapter 30 of the West Virginia Code; and
2.5.6. Specialized Family Care providers providing only services to individuals in Specialized Family Care settings, or Natural Family or Adoptive Family Homes providing Intellectual/Developmental Disabilities Waiver (IDDW) services.
2.6. The Director shall deem the license of all facilities operating as Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IID) serving only children that are in compliance with federal certification standards and of residential children’s programs functioning within the scope of their license as described in 78CSR3.
2.7. The Director shall deem the license of a child placing agency providing behavioral health services within the scope of its license as described in 78CSR02.
2.8. In the event a facility otherwise exempt under subsection 2.5.3. of this rule wants to be licensed as a behavioral health center, that facility must follow the application procedures in this rule and must comply with all provisions of this rule. While licensed, the exemption in subsection 2.5.3. no longer applies.
W. Va. Code R. § 71-25-3 Definitions
3.1. Abuse. -- The willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial wellbeing. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain, or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse, including abuse facilitated or enabled through the use of technology. Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm.
3.2. Addiction. -- A disease characterized by the individual’s pursuing reward, relief, or both, by substance use or other behaviors. Addiction is characterized by impairment in behavioral control, craving, inability to consistently abstain, and diminished recognition of significant problems with one’s behaviors and interpersonal relationships; likely to involve cycles of relapse and remission.
3.3. Adult Basic Skills Coaching. -- Coaching or prompting of individuals in their home or group home environment in areas including, but not limited to, money management, safety, housekeeping, personal care, nutrition, cooking, and medication education. This is a supportive service.
3.4. Advocate. -- A person or agency that acts on behalf of a consumer to establish, expand, protect, and enforce his or her human, legal, and civil rights in a consumer’s best interest.
3.5. Alteration. -- A change to a provider location that affects the usability of the building or facility or any part thereof. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangements in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting, wallpapering, carpeting, flooring, or changes to mechanical and electrical systems are not alternations unless they affect the usability of the building or facility. Administrative offices and buildings are not included.
3.6. Assessment. – An evaluation of a consumer by a qualified person working within his or her scope of practice using skills of examination including appraisal and analysis of data collected to provide care and services.
3.7. Aversive Procedures. -- Restrictive procedures that impose consequences a consumer finds undesirable in a treatment program to decrease inappropriate behaviors. What is undesirable varies with each consumer but generally includes such measures as fines or loss of privileges. Aversive procedures include, but are not limited to, physical and chemical restraint, time-out, and seclusion.
3.8. Behavioral Health Center. -- A provider, entity, or facility that provides behavioral health services, supports, or both.
3.9. Behavioral Health Services. -- A direct service provided as an inpatient, residential or outpatient service to an individual with mental health, addictive, behavioral, or adaptive challenges that is intended to improve or maintain functioning in the community. The service is designed to provide treatment, habilitation, or rehabilitation.
3.10. Behavioral Intervention. -- A written behavior support plan approved by the service planning team, the consumer, and the designated legal representative if applicable. A behavioral intervention must be based on a functional assessment of the targeted behavior and must be specific and measurable.
3.11. Case Management. -- A skilled, non-clinical service that links appropriate services and supports to a specific population. Case management is a collaborative process of assessment, planning, facilitation, evaluation, and advocating of available services to meet a consumer’s assessed need promoting consumer safety, quality of care, and cost-effective outcomes. The case manager is a trained professional who coordinates a team process which assesses the needs of the consumer and consumer’s family, when appropriate, and arranges, coordinates, monitors, evaluates, and advocates for a package of multiple services in collaboration with appropriate and available provider agencies to meet the specific consumer’s complex needs. This service may involve, but is not limited to, assistance with completion of applications and forms; transportation; assistance with making appointments for medical, other care, or both; telephone calls; and other linkage activities to meet the consumer’s specific needs. This service involves the preparation of a detailed, person-centered service plan with specific person-centered goals and objectives and designated outcomes and timeframes. Case management is not a behavioral health or supportive service requiring licensure as a behavioral health center if that is the only service being provided.
3.12. Chemical Restraint. -- A medication used to control behavior or to restrict the consumer’s freedom of movement when the medication is not a standard treatment for the consumer’s medical or psychological condition. Doses of any medication prescribed at levels beyond that recommended for normal clinical use shall also be evaluated for inclusion as a chemical restraint.
3.13. Chief Executive Officer. -- The individual designated by the governing body to be responsible for the provider’s daily operations. The chief executive officer may also be referred to as the provider’s president, executive director, or chief administrative officer. The chief executive officer may designate requirements within this rule but shall retain the responsibility that the designated requirements are met.
3.14. Civil Rights. -- The rights of personal liberty guaranteed by the Constitutions of the United States and the state of West Virginia, by federal and state law.
3.15. Comprehensive Plans of Services. -- A written description of the behavioral health services and supports provided to the consumer accompanied by a description of the measurable goals of the supports the consumer is receiving. These services may be provided by more than one agency acting in coordination. The comprehensive plan is utilized for consumers receiving both behavioral health services and supports.
3.16. Consumer. -- An individual who receives services, supports, or both, from a provider licensed under this rule.
3.17. Critical Incident. -- The alleged, suspected, or actual occurrence of any of the following involving a consumer:
3.17.1. Abuse;
3.17.2. Neglect;
3.17.3. Death due to any cause;
3.17.4. Attempted suicide;
3.17.5. Behavior that will likely lead to serious injury or significant property damage;
3.17.6. Fire resulting in injury, relocation, or an interruption of services;
3.17.7. Any incident with law enforcement authorities;
3.17.8. Injury that requires hospitalization or results in permanent physical damage;
3.17.9. Life-threatening reaction because of a drug or food;
3.17.10. A serious consequence resulting from an apparent error in medication or dietary administration;
3.17.11. Extended and unauthorized absence of a consumer that exceeds his or her treatment plan provision for community access; or
3.17.12. Removal of a consumer from either residential or program services without the consent of a consumer or his or her legal representative.
3.18. Critical Treatment Juncture. -- The occurrence of an unusual or significant event which may have an impact on the process of treatment. A critical treatment juncture shall result in a documented meeting between the provider and the consumer, Designated Legal Representative, or both, and may cause a revision of the plan of services.
3.19. Designated Legal Representative or Legal Representative. -- Parent of a minor child, conservator, full or limited legal guardian, health care surrogate, medical power of attorney, power of attorney, or other individual authorized to make certain decisions on behalf of a consumer and operating within the scope of his or her authority.
3.20. Director. -- The Director of the Office of Health Facility Licensure and Certification, or his or her designee.
3.21. Emergency. -- A situation or set of circumstances which presents immediate risk of death or serious injury to a consumer.
3.22. Employee. -- All persons who work or provide services at or for the provider. Employees include owners, associates, and contracted agents.
3.23. Expanded Plan of Service. -- A description of the treatment, habilitation, or rehabilitation goal or goals of the behavioral health services provided to the consumer stated in measurable terms, accompanied by a brief description of any supportive services to be provided. The expanded plan of service is developed at the conclusion of the assessment process and may be preceded by an initial plan of service.
3.24. Governing Body. -- A clearly identified group of persons or partnership, when applicable, which ensures accountability, exercises authority over, and has responsibility for the provider’s operation and approval and review of policies and practices. The provider shall designate the governing body at the time of licensure. If an entity is a corporation with an out-of-state ownership or management structure, the provider shall identify the governing body in conjunction with the Inspector General.
3.25. Habilitation. -- A direct service to enhance the functional level of individuals by promoting the acquisition of skills or emotional or behavioral self-management abilities that the person did not develop at an appropriate developmental phase.
3.26. Human Rights Committee. -- A committee or committees whose primary function is to assist the provider in the promotion and protection of a consumer’s rights, and to review, approve, and monitor individual programs designed to manage inappropriate behaviors and other programs that are intrusive or involve risks to a consumer’s protection and rights.
3.27. Inappropriate Behavior. -- A behavior that is disruptive or increases the risk of harm to a consumer or individuals in his or her environment; a maladaptive behavior that interferes in the ability of the consumer to lead an integrated life in the community to an optimally independent degree.
3.28. Incapacitated Adult. -- Any person who, by documented reason of physical, mental, or other infirmity, is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health.
3.29. Initial Plan of Service. -- The plan developed during the admissions process that describes the services, supports, or both the consumer is to receive until the assessment process is complete and the expanded plan of service is developed.
3.30. Inspector General. -- The Inspector General of the Office of Inspector General as described in W. Va. Code §16B-2-1, or his or her designee.
3.31. Interdisciplinary Team. -- A group including a consumer, his or her legal representative, or both, and representatives from the disciplines and services that design a consumer’s treatment plan.
3.32. Linkage. -- Establishment of a relationship between a committed individual and appropriate mental health resources while the consumer is still in the hospital; subsequent case management and provision of services designed to prevent rehospitalization and promote stabilization and maintenance of function.
3.33. Medication Error. -- Failure to follow the six rights of medication administration, as follows:
3.33.1. Right client;
3.33.2. Right route;
3.33.3. Right drug;
3.33.4. Right dose;
3.33.5. Right time; and
3.33.6. Right documentation.
3.34. Mental Health Ombudsman. -- The West Virginia Office of the Mental Health Ombudsman within the Office of the Inspector General as described in W. Va. Code §16B-12-2.
3.35. Neglect. -- The failure of the facility, its employees, or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress.
3.36. Non-Critical Incident. -- Any unusual event or injury of unknown origin involving a consumer that needs to be recorded and investigated for risk management or quality improvement purposes but does not meet the definition of abuse, neglect, or critical incident.
3.37. Office of Health Facility Licensure and Certification. -- The West Virginia Office of Health Facility Licensure and Certification within the Office of the Inspector General.
3.38. Personal Attendant. -- A supportive service in which a provider assists a consumer with the activities of daily living, which may include prompting. The service may assist the individual to maintain his or her skills and abilities but does not carry the expectation of habilitation or rehabilitation as the result of the receipt of the service.
3.39. Physician Extender. -- A medical professional including an advanced practice registered nurse or a physician assistant functioning within his or her legal scope of practice.
3.40. Plan of Service. -- A written description of the behavioral health services, supports, or both that the consumer is to receive.
3.41. Provider. -- An entity, including, but not limited to, staff and individuals employed or contracted to provide consumer services on behalf of the entity, that provides behavioral health services, supportive services, or both under this rule for a licensed behavioral health center location.
3.42. Rehabilitation. -- A direct service that promotes re-acquisition of skills or emotional or behavioral self-management abilities that the person has lost due to mental illness, traumatic brain injury, institutionalization, or long-term addiction.
3.43. Respite. -- A supportive service designed to provide temporary substitute care for an individual whose primary care is normally provided by the family of a consumer. The services are to be used on a short-term basis due to the absence of or need for relief of the primary caregiver, consumer, or both. Respite consists of temporary care services and supervision for an individual who cannot provide for all of his or her own needs and may be provided in the consumer’s home location, in the community, or in a location owned, rented, or leased by the respite provider.
3.44. Restraint. -- Any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a consumer to move his or her arms, legs, body, or head freely, or a drug or medication that is used as a restriction to manage the consumer’s behavior or restrict the consumer’s freedom of movement and is not a standard treatment or dosage for the consumer’s condition. A restraint does not include devices used to treat a medical condition.
3.45. Seclusion. -- The involuntary confinement of a consumer alone in a room or area from which the consumer is physically prevented from leaving.
3.46. Student. -- A student of a community or technical college, college, or university; health services intern; medical student; or medical intern or resident for the purposes of this rule.
3.47. Supportive Service. -- A service provided exclusively to individuals with intellectual disabilities, developmental disabilities, ongoing mental health or addictive challenged, or traumatic brain injury. This service is designed to assist the individual to live in the community in a manner that is socially inclusive, optimally independent, and self-directed while preserving his or her health, safety, and quality of life. These services are not designed to change behavior or emotional functioning to support the individual in his or her community-based settings. Supportive services may include coaching or prompting of age appropriate living skills.
3.48. Treatment. -- A direct medical, behavioral, or psychotherapeutic service designed to ameliorate the effects of a mental illness, addiction, or behavioral disorder or sustain the positive effects of interventions.
3.49. Variance. -- A declaration that compliance with a rule may be accomplished in a manner different from the manner set forth in the rule.
3.50. Volunteer. An individual who offers to provide assistance and support for consumers without pay. Natural support systems such as friends, neighbors, and family members are not to be considered volunteers.
3.51. Waiver. -- A declaration that a certain rule is inapplicable in a particular circumstance.
W. Va. Code R. § 71-25-4 State Administrative Procedures
4.1. General Licensure Provisions.
4.1.1. Before establishing, operating, maintaining, or advertising within the State of West Virginia as a behavioral health center as defined in this rule, a provider shall first obtain from the Director a license authorizing the operation.
4.1.2. A license is valid for the provider named and location or locations listed in the application and is not transferable.
4.1.3. The provider shall surrender an invalid license to the Director upon written demand.
4.1.4. The provider shall notify the Director prior to the sale or merger of the entity if the ownership of a provider changes. The Inspector General shall require that a new license be obtained.
4.1.5. The Director shall make a decision on each complete application within 60 days of its receipt, provided a positive recommendation has been received from the Fire Marshal, and shall provide to unsuccessful applicants written reason for the decision.
4.1.6. The Director shall perform an onsite inspection prior to issuing initial, renewal, amended if applicable, or provisional licenses. Such inspection shall be performed within 60 days of receipt of a complete application, provided a positive recommendation has been received from the Fire Marshal.
4.1.7. The Director may enter the premises of any practice, office, or facility if the Director has reasonable belief that it is being operated or maintained as a behavioral health center without first obtaining a license.
4.1.8. If the owner or person in charge of a licensed behavioral health center or of any other unlicensed practice, office, or facility, which the Director has reasonable belief is being operated or maintained as a behavioral health center refuses entry pursuant to this rule, the Director, in consultation with the Inspector General shall petition the Circuit Court of Kanawha County or the county in which the facility is located for an inspection warrant.
4.1.9. If the Director finds, based on an inspection, that any person, partnership, association, or corporation is operating as a behavioral health center without a license, the behavioral health center shall apply for a license within 10 days.
4.1.10. A behavioral health center that fails to apply for a license is subject to the penalties established by section 13 of this rule.
4.2. License Application.
4.2.1. The provider shall submit an application for licensure, along with the required fee, when establishing a new location for service provision, relocating an existing program, renewing an expiring license, or a change of ownership occurs. Providers shall submit an application at least 60 days in advance of the need for or expiration of licensure. All applications are available online in the Behavioral Health Center portion of the OHFLAC website at ohflac.wvdhhr.org.
4.2.2. The provider shall notify the Director 60 days in advance of the following:
4.2.2.a. A change in location of administrative offices;
4.2.2.b. A change in location of a behavioral health center service location;
4.2.2.c. A change in ownership;
4.2.2.d. A significant change in the population served or type of service provided; or
4.2.2.e. Termination of operation.
4.2.3. An amended license application shall be submitted to the Director for a change in the geographic location of a service or facility, a change in the services to be provided, or a change in the bed capacity of a residential service location.
4.2.4. The provider shall submit all required information at the time of application or the application is invalid.
4.2.5. The application shall be signed by a member of the governing body, the chief executive officer, or both.
4.3. Issuance. If an applicant meets all provisions of this rule, the Director shall issue a license in accordance with this section.
4.4. Types of Licenses. -- Following application and review, the Director shall issue a license in one of three categories:
4.4.1. Initial License. -- The Director shall issue an initial license to providers establishing a new behavioral health center found to be in compliance with regard to policy, procedure, provider, record keeping, and service environment rules. An initial license shall expire not more than six months from date of issuance and shall not be re-issued. After a complete application for a regular license with required fee has been received, the existing initial license shall not expire until the regular license has been issued or denied.
4.4.2. Regular license. -- The Director shall issue a regular license to providers complying with this rule. It expires not more than two years from the date of issuance. The Director may issue a regular license of shorter duration than two years to a provider.
4.4.2.a. A regular license may be amended by the Director at any time during the cycle to reflect changes in the behavioral health center’s service classification, programs, structure, or population.
4.4.2.b. A valid regular license shall be considered in effect until the Director temporarily extends or denies in writing renewal of the license or until the Director initiates formal action to terminate or otherwise modify the license and all due process actions have been resolved.
4.4.3. Provisional license. -- The Director, in consultation with the Inspector General may place a behavioral health center on provisional license status if the provider is not in substantial compliance with this rule but does not pose a significant risk to the rights or health and safety of a consumer.
4.4.3.a. Such status shall expire not more than six months from date of issuance and shall not be consecutively re-issued unless the provisional recommendation is that of the state fire marshal.
4.4.3.b. If a behavioral health center is issued provisional license status, notification of that provisional status shall be publicly posted in the location of the behavioral health center receiving provisional status for the duration of the provisional status.
4.4.3.c. The Director shall re-evaluate a behavioral health center operating under a provisional status before or near the end of the provisional period.
4.4.3.d. Once the behavioral health center is deemed to be in substantial compliance with this rule, the provisional status of the behavioral health center shall be lifted.
4.4.3.e. If the behavioral health center does not regain substantial compliance with this rule within the provisional period, the license for the behavioral health center shall be terminated: Provided, That if the review has not yet been completed by the Director within the designated time frame, the program or service may continue to operate until such time as the review has been completed and due process options, if any, are pursued to completion.
4.5. Construction and Alteration.
4.5.1. Before new construction begins, a provider shall submit to the Director for approval a copy of the site drawings and specifications for the architectural structure and mechanical work.
4.5.2. Before alteration begins, the provider shall consult with the Director regarding construction objectives. If the alteration does not affect consumer care or does not have an effect upon areas of a building or buildings in which consumer care is provided, the alteration will not be reviewable.
4.5.3. New construction and alterations shall use the most current Guidelines for Design and Construction of Residential Care Facilities as recognized by the American Institute of Architects, Academy of Architecture for Health with assistance from the U. S. Department of Health and Human Services shall be used as planning and building standards.
4.5.4. The Director may require site drawings or other materials depending on the extent and type of alteration, provided that normal maintenance, reroofing, painting, wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility to provide consumer care.
4.5.5. All altered structures, depending on the extent and type of alterations, and new structures owned or leased by the provider shall conform to the Americans with Disabilities Act as amended.
4.5.6. All plumbing shall meet the requirements of local plumbing codes or, in the absence thereof, the National Plumbing Code and be maintained and repaired in a state to conform with its intended purpose.
4.5.7. The Director shall provide consultation and technical assistance in obtaining compliance with this rule.
4.6. Inspections and Records.
4.6.1. The provider shall comply with any reasonable requests from the Director to have access to the service, staff, consumers, and relevant records of the agency. Consumers, their designated legal representatives, or both may be interviewed with his or her permission.
4.6.2. The provider may maintain files in an electronic medium.
4.6.3. The provider shall provide upon request all records required by the Director to determine compliance with this rule.
4.6.4. Current consumer records necessary to provide care shall be maintained at the location in which the consumer services are provided. Consumer records not necessary to provide care shall be maintained at the location in which the consumer services are provided, or a central administrative office.
4.6.5. The provider shall establish a process for maintaining current, easily accessible consumer records from intake through discharge.
4.6.6. The Director may conduct announced and unannounced inspections of all aspects of the provider’s operation and premises. A consumer may deny access to his or her place of residence unless it is owned or leased by the provider or unless there is evidence of a clear and immediate danger to the health of a consumer.
4.6.7. A provider shall permit review and, upon request, provide a copy of a consumer’s medical records, personnel records, and other relevant records as requested by the Director. The Director shall ensure the confidentiality of such information, including consumer or employee protected health information.
4.6.8. The Director shall inspect a licensed behavioral health center 30-to-90 days prior to the expiration of its license.
4.6.9. The Director shall issue a report within 10 working days of completion of an inspection.
4.6.10. The report may result in a citation. The Director shall describe the provider’s non-compliance with the standard in detail and the provider shall be expected to supply the Director with a plan of correction as described in the provisions of this rule.
4.6.11. An Intermediate Care Facilities for Individuals with Intellectual Disabilities for adults, also licensed as a behavioral health center, must submit a renewal application but shall be exempt from an on-site renewal inspection only. An Intermediate Care Facilities for Individuals with Intellectual Disabilities shall not be exempt from complaint investigations, enforcement, or any other provisions of this rule.
4.7. Complaint Investigation.
4.7.1. Any person may file a complaint with the Director alleging violation of applicable laws or rules by a provider. Incidents reported to the Director may be considered complaints at the discretion of the Director but are not required to be considered complaints. A complaint shall state the nature of the complaint and the provider or behavioral health center by name.
4.7.2. The Director may conduct unannounced inspections of behavioral health centers involved in a complaint and any other investigations necessary to determine the validity of a complaint.
4.7.3. At the time of the investigation, the investigator shall present state identification and request to speak to the person in charge of the location. The investigator shall instruct that person to contact the chief executive officer.
4.7.4. The Director shall give the provider a written report of the results of the investigation along with specific findings, detailed analysis of licensure regulations implicated, a report of any violations, and a notice describing the provider’s due process rights. The written report shall be issued by the Director within 10 working days of completing the investigation. The complaint investigation may result in a citation, recommendation, both, or neither.
4.7.5. The Director shall inform the complainant that an investigation was conducted and whether it was substantiated. The Director shall keep the names of a complainant and of any consumer or designated legal representative involved in the complaint or investigation, and any information that could reasonably lead to the identification of the complainant, and any consumer or designated legal representative, confidential, but shall disclose the general nature of the complaint to the provider upon determining that a violation has occurred.
4.7.6. 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.
4.7.7. The provider shall not discharge or discriminate in any way against any individual or group of individuals who has been a complainant, on whose behalf a complaint has been submitted, or who has participated in an investigation process by reason of that complaint.
4.8. Reports of Investigations and Inspections.
4.8.1. All investigations and inspections shall result in a written report by the Director, even if no violation has been identified.
4.8.2. 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.
4.8.3. Information in reports or records is available to the public except:
4.8.3.a. As specified in this section regarding complaint investigations;
4.8.3.b. Information of a personal nature from a consumer or personnel record; and
4.8.3.c. Information required to be kept confidential by state or federal law.
4.8.4. The Director shall not make a report public until the provider has the opportunity to review the report, submit a plan of correction, have that plan of correction approved, and obtain an approved plan of correction, if necessary.
4.9. Plans of Correction.
4.9.1. Within 10 working days after receipt of the inspection report, the provider shall submit to the Director for approval a written plan to correct all deficiencies that are in violation of this rule and described by citation. Citations being appealed through the identified methods of due process and not involving harm may not require a plan of correction until after due process. The plan shall specify:
4.9.1.a. Action taken or procedures proposed to correct the areas of non-compliance and prevent their reoccurrence;
4.9.1.b. Date of completion of each action taken or to be taken; and
4.9.1.c. Signature of the chief executive officer or his or her designee.
4.9.2. The Director shall approve, modify, or reject the proposed plan of correction in writing within 10 working days of receipt. The provider shall make modifications to the plan as requested by the Director.
4.9.3. The Director shall state the reasons for rejection or modification of any plan of correction.
4.9.4. The provider shall submit a revised plan of correction within 10 working days whenever the Director rejects a plan of correction. If the Director cannot approve the second submitted plan of correction, he or she shall supply a directed plan of correction. The final report shall denote that the plan of correction was directed.
4.9.5. The provider shall immediately correct an area of non-compliance that clearly results in an immediate risk to the health or safety of a consumer or other persons.
4.9.6. The Director may release a report to the public no less than 10 days after receipt of an approved plan of correction or a directed plan of correction unless the provider has elected to pursue due process appeals and has notified the Director of the intent to do so. Such report shall not be releasable until the completion of the due process appeals have been exhausted by the provider.
4.10. A forensic group home shall not be located within one mile of a residential area; a public or private day care center; or a public or private k-12 school, learning pod, or micro-school. The Director, in consultation with the Inspector General may grant a variance to a forensic group home in existence prior to March 6, 2023, if the forensic group home demonstrates that it has adequate patient population controls and that otherwise meets the requirements set forth in this rule.
4.11. Waivers or Variances -- A provider 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 or varied, the duration of the waiver or variance, and the terms under which the waiver or variance is granted.
4.11.1. Waiver or variance of specific requirements shall be granted only when the provider has documented and demonstrated that it complies with the intent of the particular requirement in a manner not permitted by the requirement.
4.11.2. The waiver or variance shall contain provisions for a review of the waiver or variance if necessary.
4.11.3. When a provider fails to comply with the waiver or variance agreement, the agreement is subject to immediate cancellation, provided that such cancellation shall allow sufficient time to make alternative arrangements for consumers. The Director, in consultation with the Inspector General shall immediately inform the provider in writing of cancellation of a waiver or variance.
4.12. For the purposes of substance use disorder services, if a provider is enrolled to accept West Virginia Medicaid and is authorized to provide behavioral health services in its state, the Office of Health Facility Licensure and Certification may through reciprocity authorize it as a West Virginia Behavioral Health Center under this rule.
W. Va. Code R. § 71-25-5 Consumer Rights
5.1. Basic Rights.
5.1.1. A consumer shall have rights including, but not limited to:
5.1.1.a. The right to treatment and services that support a consumer’s liberty and result in positive outcomes to the maximum extent possible;
5.1.1.b. The right to an individualized, written treatment plan to be developed promptly after admission; treatment based on the plan; periodic review and reassessment of needs; and appropriate revisions of the plan.
5.1.1.c. The right to treatment and services in the least restrictive, most appropriate, and potentially most effective setting;
5.1.1.d. The right to ongoing informed participation in the treatment plan process;
5.1.1.e. The right to refuse treatment at any time;
5.1.1.f. The right to a legal representative when unable to act on his or her own behalf;
5.1.1.g. The right to be free from involuntary experimentation;
5.1.1.h. The right to freedom from restraint or seclusion. Restraint and seclusion shall only be used in situations where there is imminent danger to the consumer or others and all less restrictive methods of control have been used;
5.1.1.i. The right to a humane treatment environment in which personal dignity and self-esteem are promoted;
5.1.1.j. The right to confidentiality of records, as provided in this rule;
5.1.1.k. The right to access his or her own consumer records in accordance with state law;
5.1.1.l. The right to assert grievances, orally or in writing, with respect to the infringement of all rights, including the right to have all grievances considered in a fair, timely, and impartial procedure. In the event the consumer is not satisfied with the determination by the provider, the consumer may appeal the determination by submitting a copy of the original grievance and determination to the Office of the Mental Health Ombudsman;
5.1.1.m. The right of access to an available advocate in order to understand, exercise, and protect his or her rights;
5.1.1.n. The right to be informed in advance of any charges for services;
5.1.1.o. The right to exercise his or her civil rights;
5.1.1.p. The right to referral, as appropriate, to other providers of behavioral health services;
5.1.1.q. The right to be free from physical, verbal, sexual, or psychological abuse or punishment;
5.1.1.r. The right to be free from unnecessary or excessive medication;
5.1.1.s. The right to medication that is not used as punishment, for the convenience of staff, as a substitute for programming, or in quantities that interfere with the treatment program;
5.1.1.t. The right to be free from uncompensated labor, except for consumers in residential facilities who perform housekeeping tasks;
5.1.1.u. The right to be informed orally and in writing, in appropriate language and terms, of the rights described in this section; and
5.1.1.v. A residential consumer shall have:
5.1.1.v.1. The right to be housed with consumers of the same approximate ages, developmental levels, and social needs;
5.1.1.v.2. The right to unimpeded access to his or her attorney or religious advisor;
5.1.1.v.3. The right to constant access to his or her personal possessions unless contraindicated by treatment plan; and
5.1.1.v.4. The right to private communication with others by mail, electronic mail, text messaging, in person, and by telephone.
5.1.2. Rights and personal liberties may be limited by established policies and procedures when the limitation of the right is clinically appropriate and clearly justified in writing.
5.1.3. A consumer’s rights and responsibilities shall devolve only to a legal representative as defined in this rule and to the extent that the legal representative’s acts are not hostile or adverse to the best interests of a consumer. This provision does not relieve the provider of the responsibility of informing a consumer as required by this rule, to the extent that a consumer is capable of understanding the matter, nor does it in any way deprive a consumer of his or her legal rights granted under state or federal law.
5.2. Violation of Consumer Rights.
5.2.1. A consumer, an employee, or any other individual may make a complaint to the provider. A supervisor shall report to the chief executive officer or designee within 24 hours regarding all violations, or suspected violations, of a consumer’s rights, except in the case of physical abuse for which immediate notification shall be made to all appropriate and required state and law enforcement agencies.
5.2.2. The provider must have evidence that all violations, or suspected violations, of a consumer’s rights are thoroughly investigated within a reasonable time period not to exceed 14 days. The chief executive officer or designee shall provide a written report to the human rights committee of his findings and of the actions taken to prevent further occurrences. A consumer or consumers shall be identified by case number only.
5.2.3. The provider shall make a notation of the incident and the effect of the incident on a consumer’s illness or treatment in a consumer’s record.
5.2.4. If the chief executive officer or designee findings and actions on behalf of a consumer regarding a violation of the consumer’s rights is unfavorable, insufficient, or not forthcoming within a reasonable time, the consumer, or his or her legal representative, may appeal to the governing body of the provider, the state licensure body, the West Virginia advocate, or other appropriate resource.
5.3. Human Rights Committee.
5.3.1. The provider shall maintain a human rights committee to:
5.3.1.a. Hold meetings and keep written minutes of all meetings, including, at a minimum, the names and titles of all members and guests present and members absent. However, a provider may choose to maintain additional information;
5.3.1.b. Report activities and recommendations, if any, at least annually to the governing body, or a standing committee of the governing body;
5.3.1.c. Review, approve prior to implementation, and monitor individual consumer behavior plans that include aversive procedures, such as restraint and seclusion, for the control of inappropriate behaviors;
5.3.1.d. Review internal and external investigations of complaints and consumer grievances, including alleged abuse, mistreatment, or neglect;
5.3.1.e. Review and approve prior to implementation research activities and monitor them every three months, or when changes are contemplated; and
5.3.1.f. Ensure that aversive procedures are used only with the written consent of a consumer or his or her legal representative.
5.3.2. A provider with fewer than 30 consumers shall have a minimum of three members on the human rights committee, and a provider with more than 30 consumers shall have a minimum of five members.
5.3.3. At least one-third of the committee members shall be consumers, and no more than one-third shall be staff of the provider.
5.3.4. Ensure that the members have training in confidentiality in order to review consumer records.
5.4. Provider and Behavioral Health Center Responsibility. Providers shall develop and implement a code of conduct that includes, but is not limited to, provisions regarding the following:
5.4.1. How informed consent and participation of a consumer in decisions about services, care, and treatment are to be honored and implemented;
5.4.2. That the right of a consumer to refuse participation in clinical studies or other remedies are to be respected and followed; and
5.4.3. Decisions made about care are to be based solely on the assessment and treatment needs, including consideration of the consumer’s wants and desires and other clinical documentation of the consumer’s health and behavioral health status.
W. Va. Code R. § 71-25-6 Risk Management and Quality Assurance
6.1. Insurance and Bonding.
6.1.1. The provider shall purchase or self-fund appropriate types of insurance including as appropriate, but not limited to, general liability, fire and theft, professional liability, officer’s or director’s liability, and automobile liability for vehicles owned or leased by the provider.
6.1.2. The provider shall ensure that all staff who handle or manage consumer funds are bonded at the provider’s expense or that the provider maintains appropriate insurance coverage to cover potential losses unless the aggregate amount of consumer funds is less than $500.
6.1.3. Parents acting in their legal capacity as conservators for their children or protected adults, even if employed by the provider, are not included in the requirement for bonding.
6.1.4. The provider may elect to self-insure but must guarantee replacement of losses of consumer funds.
6.1.5. All bonding policies shall be adequate to replace the aggregate of consumer funds managed by the provider or if the provider elects to self-insure, there must be evidence of sufficient financial capacity to replace consumer funds.
6.2. Transportation.
6.2.1. A provider that provides transportation in vehicles owned or leased by the provider for use with consumers as part of a service shall have procedures for ensuring:
6.2.1.a. The use of age-appropriate passenger restraint systems and adequate vehicle modifications including lifts;
6.2.1.b. Adequate passenger supervision relative to the ages, genders, behavioral challenges, and disabilities of the consumers being transported;
6.2.1.c. Proper and timely licensure and inspection of the vehicles;
6.2.1.d. First aid kits in each vehicle;
6.2.1.e. Proper and timely maintenance of vehicles;
6.2.1.f. That the number of persons in any vehicle used to transport consumers shall not exceed the number of available safety restraint systems;
6.2.1.g. Sufficient liability insurance;
6.2.1.h. Secure anchoring for wheelchairs; and
6.2.1.i. Annual validation of driver licenses of individuals driving vehicles that transport consumers.
6.2.2. Staff or contracted individuals transporting consumers in their own vehicles as part of their duties shall annually sign an affidavit to the provider on or before July 1, attesting to the status of their insurance and the vehicles they will be using for transporting consumers. The affidavit shall attest to the fact that the individual is properly insured in case of an automobile accident, that the vehicles to be used have a valid inspection sticker, and that the vehicles to be used are legally registered. The provider shall retain the affidavits in tis records for a period of five years. A firearm may not be present in any vehicle used to transport a consumer.
6.3. Quality Assurance.
6.3.1. The provider shall have and implement a systems review of the appropriateness and effectiveness of consumer services which includes an analysis of the results of treatment plan reviews and of reports by the human rights committee.
6.3.2. The protection of civil rights for consumers with disabilities is of extreme importance. Special attention and efforts are essential to ensure that a consumer’s human and civil rights are promoted, exercised, and protected.
W. Va. Code R. § 71-25-7 Legal Compliance
7.1. The provider shall comply with all applicable federal, state, and local laws, rules, and regulations associated with all aspects of service delivery and operations and shall possess all necessary licenses.
7.2. Current licenses or certificates shall be prominently displayed in an area visible to the public.
7.3. The provider shall maintain in the administrative file reports and certifications as applicable regarding:
7.3.1. Certification of occupancy requirements;
7.3.2. Delineation of zoning and building codes;
7.3.3. Compliance with occupational safety and health administration codes;
7.3.4. Records of maintenance and safety inspections performed internally, e.g., by the Safety Committee, Officer, or other; and
7.3.5. Any and all plans of correction or citations for the previous five years.
7.4. Governing Body.
7.4.1. The behavioral health center shall have a governing body that approves and reviews policies and procedures, has input into the provider’s mission statement, assists the provider in guiding development, and ensures the accountability of the behavioral health center and provider.
7.4.2. The governing body shall evaluate implementation of policies and procedures.
7.4.3. The governing body shall develop, maintain, and implement a conflicts of interest policy and procedures for managing a conflict and the criteria for determining whether board members have conflicting interests. The conflicts of interest policy shall, at a minimum, require:
7.4.3.a. Those with a conflict, or who think they may have a conflict, to disclose the conflict or potential conflict; and
7.4.3.b. Prohibit interested board members from voting on any matter in which there is a conflict.
7.5. Security of Information and Consumer Records.
7.5.1. The provider shall have policies and procedures regulating access to records of staff and consumers that are in compliance with all federal and state requirements. Regulatory agencies shall be allowed access to relevant service and employment information, clinical records, incident reports, and other documents to fulfill their statutory and regulatory duties.
7.5.2. The provider shall ensure that service records, whether paper or electronic, are made available for inspection. The behavioral health center shall ensure that employment records, whether paper or electronic, are made available for inspection during normal business hours.
7.5.3. The provider shall have procedures to protect service and employment records by reasonable efforts, whether in electronic or paper form, from destruction by fire, water, loss, or other damage and from unauthorized access.
7.5.4. Written procedures shall govern the retention, maintenance, and destruction of consumer records.
7.5.5. At a minimum, the provider shall retain consumer records for a minimum of five years from date of last service and for five years following a child’s 18th birthday if service ends prior to that time. Conversion of paper records to an electronic copy and destruction of paper is acceptable.
7.5.6. The provider shall have a policy regarding disposal of records which respects confidentiality and security of consumer information and in compliance with all applicable state and federal laws.
7.5.7. The provider shall have a policy that all computer and data systems owned by the provider shall have up to date anti-virus protection and provide protections which safeguard consumer data and privacy. Systems shall be consistent with federal and state privacy laws and regulations.
7.5.8. The format of electronically transmitted data shall comply with legal standards and requirements.
7.5.9. Release of consumer information and records.
7.5.9.a. The behavioral health center or provider shall release consumer information and records only according to its written policies and procedures and in compliance with all applicable federal and state laws, rules, and regulations.
7.5.9.b. Except as required by law, before releasing information about a consumer, the behavioral health center or provider shall obtain consent from the consumer or his or her legal representative that includes at a minimum the following:
7.5.9.b.1. Specific consumer information to be released;
7.5.9.b.2. The time period for which the consent is valid and in effect;
7.5.9.b.3. The recipient that will receive the consumer information and records; and
7.5.9.b.4. The purpose of the release of consumer information and records.
7.5.9.c. Consumer records shall be released without written consent in the following situations:
7.5.9.c.1. In a proceeding under W. Va. Code §27-5-4 to disclose the results of an involuntary civil commitment;
7.5.9.c.2. In a proceeding under W. Va. Code §27-6A-1, et seq., to disclose the results of an involuntary examination;
7.5.9.c.3. Pursuant to a court order based upon a finding that information in the consumer record is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by this rule;
7.5.9.c.4. To protect against a clear and substantial danger of imminent injury by a consumer to self or another;
7.5.9.c.5. To staff of the behavioral health center for treatment, internal review purposes, internal investigations, or a combination of the foregoing; and
7.5.9.c.6. The Director shall have full access to a consumer’s records as needed in administering state and federal requirements.
7.5.10. Consumer Record Maintenance.
7.5.10.a. The provider shall establish a process for maintaining current, easily accessible consumer records from intake through discharge in accordance with applicable federal and state laws, rules, and regulations including the provisions of this rule.
7.5.10.b. The consumer record shall contain information essential to the services or treatment including, but not limited to, the following:
7.5.10.b.1. Consumer identification data;
7.5.10.b.2. Applicable social and medical information;
7.5.10.b.3. A summary of the assessment process;
7.5.10.b.4. A record of all evaluations;
7.5.10.b.5. Treatment plans, treatment strategies, and special treatment procedures;
7.5.10.b.6. Documentation of ongoing services provided;
7.5.10.b.7. Legal representative documents;
7.5.10.b.8. Court orders; and
7.5.10.b.9. A record of any signed and dated physician’s or other healthcare provider’s order.
7.6. Contractual relationships.
7.6.1. If the provider arranges externally or contractually for the provision of consumer services, the provider shall have a written agreement which specifies:
7.6.1.a. Roles and responsibilities of the provider and the subordinate service provider;
7.6.1.b. A guarantee that the subcontracting provider shall obtain and provide copies of information regarding employees to demonstrate that the employees are in compliance with the regulatory and risk management needs of the provider;
7.6.1.c. Clinical documentation required of the subordinate service provider with time lines for provision of the documentation;
7.6.1.d. Services to be provided;
7.6.1.e. Provision of appropriate liability or malpractice insurance either by the contractor or subordinate provider;
7.6.1.f. A general definition of the consumers to be served; and
7.6.1.g. That the subordinate provider shall adhere to state and federal requirements of confidentiality.
7.6.2. The provider shall maintain a file on each contracted subordinate provider, including:
7.6.2.a. Evidence of appropriate training, licensure, or certification; and
7.6.2.b. Evidence of malpractice or liability insurance as specified in the contract.
W. Va. Code R. § 71-25-8 Financial Management
8.1. The provider shall have a written budget, approved by the governing body, that shall serve as a plan for managing its financial resources for the fiscal year.
8.2. The provider shall have established financial management policies and procedures that follow generally accepted accounting principles (GAAP).
8.3. Financial accountability for consumer funds. -- A provider that assumes fiduciary responsibility for consumer funds shall have written operational procedures that ensure:
8.3.1. Separate individual accounting of funds with monthly statements to the consumer and his or her designated legal representative, if any. Funds managed on behalf of consumers shall not be commingled with provider funds. Consumer funds may be maintained in one account for all consumer funds. However, an individual accounting for each consumer must be maintained and one consumer’s funds may not be used for the expenses of another consumer; and
8.3.2. Compliance with applicable legislative, judicial, and governmental requirements, including those applying to payment of benefits allotted by the state or federal government.
8.4. The chief executive officer, governing body, or both shall ensure adequate resources to support the provider’s services. Sufficient operating funds shall consist of cash, liquid capital, or an irrevocable letter of credit.
8.5. All money earned by a consumer shall be used for the sole benefit of that consumer.
8.6. Providers shall allow a consumer or his or her designated legal representative to use his or her personal funds.
W. Va. Code R. § 71-25-9 Management of Human Resources
9.1. Deployment and Supervision of Staff.
9.1.1. The provider shall have qualified individuals to deliver the services to which it commits via consumer assessments and treatment plans or treatment strategies based on the consumer’s functional level and physical disability. The provider shall have a system of staff supervision that is tailored to the provider’s model of service delivery and uses individual or group supervision, or both, on a regularly scheduled basis.
9.1.2. The provider shall identify an individual responsible for overall administration of the program for each site. This individual shall ensure that decisions related to care of the consumer are based on the treatment plan and assessed needs of the consumer for which informed consent has been obtained.
9.1.3. The provider shall develop a process that ensures appropriate supervision of direct service staff. Each staff person on duty shall have access to a supervisory staff person by telephone or face-to-face contact within 15 minutes of an initial attempt at supervisory contact.
9.2. Personnel practices.
9.2.1. Upon employment, the provider shall train employees regarding written policies and procedures pertaining to their employment and job responsibilities.
9.2.2. The provider shall have policies that comply with federal and state statutes, rules, and regulations regarding employment practices.
9.2.3. The provider shall review with the applicant a written job description at the time of the interview and provide a copy of a written job description upon employment and, upon significant changes in job assignment or responsibilities, provide a modified job description.
9.2.4. Staff providing direct care to consumers shall be 18 years of age or older and capable of performing the duties assigned.
9.2.5. All employees, volunteers, and students who will provide direct care shall be subject to the provisions of the West Virginia Clearance for Access: Registry and Employment Screening Act, W. Va. Code §16B-15-1, et seq., and 71CSR11.
9.2.6. The provider shall have a policy and required training process for all employees regarding mandatory reporting of allegations of consumer abuse or neglect.
9.2.7. The provider shall have a written job description and selection criteria for each position or group of similar positions that includes the position’s qualifications and responsibilities, and the title of the position’s supervisor.
9.2.8. The provider shall designate a supervisor for each separate service or program. A supervisor may be responsible for more than one program.
9.2.9. The provider shall employ persons who are qualified according to the job description and selection criteria for the positions they occupy. A provider employing any person who does not possess the qualifications noted in the position’s job description shall have a written statement justifying the individual’s employment.
9.2.10. The provider shall verify the credentials of all employees and contractors providing consumer care, including:
9.2.10.a. Education and training;
9.2.10.b. Relevant experience; and
9.2.10.c. State licensing or certification for their respective disciplines, if any.
9.2.11. If the job description requires professional licensure or certification, but an employee under supervision for licensure or certification is employed in the position, the provider shall demonstrate that:
9.2.11.a. A person with requisite credentials provides supervision to the staff; and
9.2.11.b. The staff is actively working toward licensure or certification.
9.2.11.c. This requirement will not be construed to apply to individuals performing job duties that would not normally require licensure or certification.
9.3. Volunteers.
9.3.1. The provider shall have a policy which specifies the roles and responsibilities that volunteers shall assume.
9.3.2. The provider shall ensure that volunteers receive regular supervision to provide aid, directions, or both for activity and support.
9.3.3. Any documentation provided by volunteers to be placed in a clinical record shall include the date and signature of the volunteer’s onsite supervisor prior to being placed in the record.
9.3.4. The provider shall train volunteers concerning the responsibilities of the position and the time commitments required prior to formal assignment.
9.3.5. The provider shall formally train volunteers in confidentiality prior to beginning their duties and shall maintain documentation of the training.
9.4. Students.
9.4.1. Students serving fewer than 30 hours per quarter shall be continually supervised by staff and shall not work alone with consumers. The provider shall have a policy which specifies the roles and responsibilities that students may assume.
9.4.2. Students serving an academic placement of more than 30 hours onsite per three-month quarter may work with consumers independently as defined by provider policy. However, the provider shall ensure that students receive regular documented supervision in order to provide assistance, directions for activity, and support.
Students of this type shall receive training in abuse, neglect, and mandatory reporting.
9.4.3. Any documentation provided by students to be placed in a clinical record shall include the date and signature of the student’s onsite supervisor prior to being placed in the record.
9.4.4. The provider shall formally train all students in confidentiality prior to beginning their duties and shall maintain documentation of the training.
9.5. Employee, Volunteer, and Student Records.
9.5.1. The provider shall maintain current records for all employees and for students and volunteers working directly with consumers and spending regularly scheduled time in the provider’s or consumer’s locations. These records shall contain:
9.5.1.a. Identifying information and emergency contacts;
9.5.1.b. A job description or contract;
9.5.1.c. Evaluation of employee performance as detailed in the provider policy;
9.5.1.d. Documentation of relevant education or experience as required by job description;
9.5.1.e. Documentation of orientation and required training;
9.5.1.f. Documentation that information on the Child Abuse and Neglect Registry created under W. Va. Code §15-13-1 et seq. was checked for that employee, student, or volunteer;
9.5.1.g. Documentation relating to performance, including disciplinary actions and termination summaries; and
9.5.1.h. For employees of the provider, the employee record shall also contain the following:
9.5.1.h.1. An application for employment or resume;
9.5.1.h.2. Reference verification; and
9.5.1.h.3. Documentation of education, licensure, or certification.
9.5.2. Each employee shall have a record, stored separately, containing the employee’s results of random drug screens if required by provider policy.
9.5.3. The files shall be secured in a confidential manner with limited access.
9.5.4. Students touring, observing, or onsite fewer than 30 hours per three-month quarter are not included in the requirements of this section.
9.6. Disciplinary reviews and termination. -- The provider shall have a policy which delineates procedures governing disciplinary actions and non-voluntary termination of staff.
9.7. Orientation of New Staff.
9.7.1. The provider shall ensure that all new staff receive an orientation within the first 10 days of employment and shall document that orientation in each individual’s personnel record. The orientation shall include an introduction to the staff person’s primary job responsibilities and requirements, consumer rights, and universal precautions.
9.7.2. Within the first 30 days of employment or initiation, the provider shall also train all new staff in:
9.7.2.a. Its mission, philosophy, and goals;
9.7.2.b. Its services, policies, and procedures pertaining to the employee, contract clinician, student, or volunteer’s job responsibilities;
9.7.2.c. An organizational chart that delineates lines of accountability and authority pertaining to the employee, contract clinician, student, or volunteer’s job responsibilities;
9.7.2.d. The provider’s policies and procedures on consumer confidentiality and disclosure of information, including penalties for violation of the following policies and procedures and an orientation to federal confidentiality requirements as they apply to the provider:
9.7.2.d.1. Training on identification of abuse and neglect and mandatory reporting procedures;
9.7.2.d.2. Appropriate identification and documentation of incidents;
9.7.2.d.3. Sensitivity to differences in cultural norms and values;
9.7.2.d.4. Proper documentation procedures;
9.7.2.d.5. Fire drills and evacuation procedures (if applicable); and
9.7.2.d.6. Procedures regarding medical or other emergencies, including, but not limited to crisis intervention.
9.7.3. Employees providing direct care to consumers shall be trained in the specific care required for the consumers for which they are assigned. This training will be based on the program plan of the consumer and must include cardiopulmonary resuscitation and first aid.
9.7.4. Additionally, except for outpatient clinical staff providing only behavioral health services, program staff with direct care responsibilities in home- or site-based programs shall be trained within 30 days upon:
9.7.4.a. Psychiatric emergency procedures and management including systematic de-escalation;
9.7.4.b. Blood borne pathogens;
9.7.4.c. Infection control; and
9.7.4.d. Emergency care, first aid, cardiopulmonary resuscitation, and Heimlich’s maneuver.
9.7.5. Personnel shall be able to demonstrate the skills and techniques necessary for their jobs. Documentation that personnel are qualified to perform their associated functions by virtue of training, experience, or both shall be maintained by the facility.
9.7.6. Until the training is completed, the staff person shall not work unless accompanied at all times by a staff member who is experienced and knowledgeable in these areas.
9.7.7. The provider shall document all training provided to staff.
W. Va. Code R. § 71-25-10 Service Environment
10.1. Physical Environment:
10.1.1. Water supply:
10.1.1.a. All water systems shall comply with the applicable rules of the Department of Health.
10.1.1.b. All drinking water fountains shall be sanitary and accessible.
10.1.2. Sewage disposal. -- All facilities shall be served by an approved public sewage system or by a sewage disposal system that has been approved by the Secretary according to the design standards and rules of the Department of Health.
10.1.3. Lighting, Ventilation, Heating.
10.1.3.a. By natural or mechanical means, all rooms shall provide adequate heating, illumination, and ventilation.
10.1.3.b. The following shall be prohibited:
10.1.3.b.1. Unvented, fume-producing heating devices; and
10.1.3.b.2. Unprotected open heaters.
10.1.4. Requirements for Group Homes and 24-Hour Residential Treatment Facilities owned, leased, or operated by a Behavioral Health Center.
10.1.4.a. Bedrooms shall be adequately furnished and provide a minimum of 80 square feet of floor space per person for one-person occupancy and a minimum of 60 square feet of floor space per person for two-or-more person occupancy. Bunk beds are not to be used. For infants delivered to a mother participating in a mother/baby program, a variance may be granted to the square footage requirement.
10.1.4.b. Each occupant of a facility shall be provided a permanent, separate bed with a clean, comfortable, covered mattress, clean bedding, clean towels, and other furnishings appropriate to the length of stay and needs of the occupant.
10.1.4.c. Each room shall be arranged in consideration of the occupants’ clinical needs.
10.1.4.d. Each bedroom window shall have covering for privacy.
10.1.4.e. Furnishings shall be homelike and personalized.
10.1.4.f. Facilities shall have appropriate storage areas for items such as: foodstuffs, utensils, work materials, cleaning supplies, clothing, linens, medicines, and toxic materials.
10.1.4.g. Poisons and other potentially hazardous items shall be kept in a locked place but may be used by consumers who have documented training to use them.
10.1.4.h. Each facility shall provide a sufficient number, based on applicable standards and proposed consumer census, of accessible, safe, comfortable, and clean lavatories, bathtubs, and showers equipped with hot and cold running water and a mixing faucet to ensure a water temperature not to exceed 110 degrees Fahrenheit.
10.1.4.i. Each facility shall document monthly water temperature with the reading obtained from each mixing faucet.
10.1.4.j. Solid waste storage shall be sufficient to contain all solid waste in a safe and sanitary manner.
10.1.4.k. Solid waste, including garbage and refuse, shall be removed from the premises weekly or more often if necessary;
10.1.4.l. Grounds and structures shall be kept free of insects, rodents, and vermin that stand to pose a threat to the health or safety of consumers or employees by an effective pest control program. Pesticides shall be applied only by an applicator certified by the West Virginia Department of Agriculture or a registered technician operating under the supervision of a certified applicator; and
10.1.4.m. Each facility shall keep weekly temperature logs of all refrigerators and freezers that store consumer food.
10.2. Safety and Environmental Quality.
10.2.1. The provider shall provide services in an environment (buildings, grounds, and equipment) that meets all applicable federal, state, and local health, building, safety, and fire codes unless the location for provision of service is the consumer’s natural family home.
10.2.2. All structures and equipment owned, leased, or rented by the provider for use with consumers shall be clean, safe, accessible, and appropriate for the needs of the consumer. All such structures and equipment shall be kept in good repair.
10.2.3. Facilities and buildings owned, leased, or rented by the provider for use with consumers shall be clean, safe, accessible, and appropriate for the needs of the consumer.
10.2.4. The provider shall post by the telephone in all provider-owned or leased direct care and residential service locations emergency telephone numbers for the fire department, poison control hotline, local police, and on-call staff. Capable consumers shall be instructed on how and when to use them.
10.2.5. Buildings owned or leased by the provider shall be in compliance with Title III of the Americans with Disabilities Act unless otherwise exempted. The provider shall develop and implement a plan to address issues of access, i.e., the removal of structural barriers through ramps, widened doorways, and accessible parking; removal of obstructing furniture; widening of toilet stalls; installation of grab bars; and other modifications that are readily achievable within the resources of the provider and based upon the needs of the consumers served.
10.2.6. All buildings owned, leased, or rented by the provider for consumer use shall conform to the current Life Safety Code of the National Fire Protection Association, unless exempted by the State Fire Marshal.
10.2.7. The provider shall have documentation that the facilities owned or leased by the provider and used for services are in substantial compliance with the State Fire Code. That evidence shall be renewed as required by the State Fire Marshal.
10.2.8. The provider shall conduct quarterly fire drills in its residential and daytime group setting locations, some of which shall be held during rest or sleeping periods.
10.2.9. The provider shall check fire extinguishers monthly to ensure they have adequate pounds per square inch and have fire suppression systems reviewed by a qualified professional annually.
10.2.10. The provider shall not maintain any firearms or chemical weapon within the structures of the facility or in a vehicle when the vehicle is used to transport a consumer.
10.2.11. All power-driven equipment used by a facility shall be kept in sage and good repair. The equipment shall be used by consumers only under the supervision of a trained staff member.
10.2.12. The provider shall provide adequate housekeeping, laundry, maintenance, storage, and other administrative support functions required to carry out the provision of behavioral health services and supports. The laundry room shall have separation between the soiled and clean laundry with mechanical ventilation in the soiled area, a clean area large enough for folding linens, and venting to the outside for any electric or gas dryer.
10.2.13. The provider shall demonstrate through infection control, emergency preparedness, and other means that it identifies, monitors, reduces, and eliminates health and safety risks.
10.2.14. The provider shall evaluate the likelihood of exposure to blood borne pathogens for all persons likely to come in contact with blood.
10.3. Food Services.
10.3.1. If food services are provided or if food is managed by the provider in a consumer residence, food shall be stored, prepared, and served in a sanitary manner.
10.3.2. The provider shall conform to the requirements for food service as specified by the Department of Health Legislative Rule, Food Establishments, 64CSR17.
10.3.3. Food services, when provided, shall:
10.3.3.a. Meet or exceed national nutrition standards;
10.3.3.b. Be planned with regularly documented assistance;
10.3.3.c. Provide well balanced meals and snacks; and
10.3.3.d. Be provided in accordance with the consumer’s development level, including all modified and special diets.
W. Va. Code R. § 71-25-11 Compliance with Legal, Health, and Regulatory Requirements
11.1. Emergency Planning and Response.
11.1.1. The provider shall have written procedures in place for responding to accidents, serious illness, fire, medical emergencies, flood, natural disasters, and other life-threatening situations that:
11.1.1.a. Address the needs of any special population served by the provider;
11.1.1.b. Provide staff-to-consumer ratios for the adequate protection and supervision based on the consumer’s assessed needs, treatment plan or treatment strategy, functional level, identified behaviors, and physical limitations.
11.1.1.c. Specify evacuation procedures including an evacuation site, parties to notify, and emergency items to take when evacuating;
11.1.1.d. Describe relocation plans for the behavioral health center or any part thereof, if it becomes necessary; and
11.1.1.e. Specify appropriate responses to medical emergencies.
11.1.2. The provider shall have procedures in place for dealing with consumers or other individuals who threaten violence or harm to themselves or others including staff and other consumers.
11.2. Medication Control and Administration.
11.2.1. Medication shall be prescribed and monitored by a licensed physician, dentist, or physician extender according to their scope of practice and state law. Contracted medical staff functioning on the provider’s premises are responsible for complying with provider policies and procedures. The physicians and other staff shall have files containing the materials or information specified in this rule.
11.2.2. The provider shall note changes in a consumer’s condition including, but not limited to, adverse reactions as a result of receiving a medication.
11.2.3. The provider shall inform a consumer, and his or her legal representative, about the medication including, but not limited to, the dosage, purpose, possible side effects, effects, of not taking the medication, and about alternate treatments and their effects.
11.2.4. Providers who administer medication using approved medication assistive personnel shall comply with the Office of Inspector General Legislative Rule, Delegation of Medication Administration and Health Maintenance Tasks to Approved Medication Assistive Personnel, 71CSR17.
11.2.5. When medication is administered by the provider, the organization shall ensure that there is an individual medication administration record for those consumers who receive medications to include:
11.2.5.a. Medications administered;
11.2.5.b. The date medications were administered;
11.2.5.c. The actual time of administration, which shall be within one hour of the prescribed time;
11.2.5.d. The initials and signature of the individual administering the medication;
11.2.5.e. A record of missed medications and the reason; and
11.2.5.f. Any special instruction as directed by prescriber.
11.2.6. Prescription medications administered by the provider shall be properly labeled and packaged and remain in the original packaging until administration, and include:
11.2.6.a. The name of the person served;
11.2.6.b. The route of administration;
11.2.6.c. The dosage and the name of the medication;
11.2.6.d. The name of the prescriber; and
11.2.6.e. The expiration date.
11.2.7. The provider shall have written procedures that govern:
11.2.7.a. The safe disposal of discontinued, out-of-date, or unused medications, syringes, medical waste, or medication; and
11.2.7.b. Provision for locked, supervised storage of medications, including that controlled substances be double locked, with access limited to authorized staff. Authorized staff must have the authority to administer medications.
11.2.8. Medication samples are considered to be the property of the provider. Samples shall be stored in a systematic fashion in a locked area with limited access to unauthorized staff or consumers. The provider shall document distribution of sample medications in the consumer medical record.
11.2.9. If a provider both prescribes and administers medications, only licensed nursing staff shall accept verbal orders for changes in medication regimens. These shall be signed by the prescriber within one week.
11.2.10. A registered nurse or a licensed practical nurse working within his or her scope of practice, shall be responsible for:
11.2.10.a. Generating and reviewing monthly medication administration records (MARs) or reconciling them to MARs provided by a duly authorized and qualified pharmacist or pharmacy;
11.2.10.b. Matching physician’s or physician extender’s orders or prescriptions to the medication administration records;
11.2.10.c. Assisting interdisciplinary teams to develop educational goals for consumers taking regularly prescribed medications and participating in a supervised self-administration protocol as identified in the consumer’s plan for services;
11.2.10.d. Instructing staff in dietary or medication administration issues as necessary; and
11.2.10.e. Responding to emergency calls from staff on medical issues.
11.2.11. Medications shall be self-administered under supervision of trained staff under the following conditions:
11.2.11.a. As part of the consumer’s plan of need, he or she is taught to identify his or her medications, recognize possible side effects, describe the purpose of the medication, and indicate the time of day and frequency with which he or she is to take the medications;
11.2.11.b. The consumer is assessed by a registered nurse, physician, physician extender, or licensed or supervised psychologist as being cognitively capable of learning these skills;
11.2.11.c. Medication is kept in a secure location with access limited only to staff with capability of medication administration;
11.2.11.d. Staff is fully trained as to the purpose, most common side effects, and dangers of each medication prescribed for consumers in the facility or home; and
11.2.11.e. Staff is trained in emergency procedures for overdose or adverse reactions.
11.2.12. Delivering and monitoring medications in a consumer’s place of residence:
11.2.12.a. If a provider delivers medications to a consumer on a regular basis, the provider must:
11.2.12.a.1. Document delivery date, time, person receiving medication, and name and amount of medication delivered;
11.2.12.a.2. Ensure that if there are children or other incapacitated adults in the home, medications are at least initially stored properly in secured containers;
11.2.12.a.3. Provide medications in properly packaged format as required by W. Va. Code §30-5-1, et seq.; and
11.2.12.a.4. Develop a system of monitoring the consumer’s compliance with consumption of medications that is created with the agreement and participation of the consumer. This system may consist of the consumer logging consumption of his or her own medications. The consumer has the right to refuse participation in a monitoring system. However, the provider may then refuse to deliver medications to the consumer’s residence and make alternative arrangements for the provision of medications.
11.2.13. Medical and Psychiatric Emergency Services. The provider shall have written policies and procedures for handling medical and psychiatric emergencies to ensure:
11.2.13.a. Communication with the nearest medical emergency services, hospital, and local polices;
11.2.13.b. A 24-hour telephone response system; and
11.2.13.c. An investigation of any incident that results in serious injury or death, a reporting by the provider to the appropriate authorities and the Director, and a written report of the investigation.
11.2.14. Emergency Medical and Psychiatric Services in Group Homes and Residential Treatment Facilities.
11.2.14.a. The provider shall respond to a consumer’s needs 24 hours a day, seven days a week, including providing appropriate triage for a consumer who poses a danger to himself, herself, or others.
11.2.14.b. The provider shall provide onsite staff with immediate access to relevant information in a consumer’s record in case of an emergency.
11.2.14.c. Written policies shall be developed and implemented for the treatment, referral, and follow-up of a consumer who attempts or threatens suicide, homicide, or assault.
W. Va. Code R. § 71-25-12 Services
12.1. Service and Program Descriptions.
12.1.1. The provider shall develop a written description of each service or program that is available to the public and potential consumers. The description shall be updated to reflect significant changes in the service or program, and shall include:
12.1.1.a. The goals of the service;
12.1.1.b. The expected outcomes of the service;
12.1.1.c. The nature of the services provided;
12.1.1.d. The usual staffing of the service including general description of credentialing;
12.1.1.e. Eligibility criteria for consumers served by the service;
12.1.1.f. Information on how to access the service; and
12.1.1.g. Restrictions in access to the service, if any.
12.2. Admission.
12.2.1. Admission to a behavioral health center must be based on the assessment conducted in compliance with section 12.3. of this rule.
12.2.2. The assessment must indicate the consumer’s need for the service or program offered by the behavioral health center.
12.2.3. The provider shall have an intake process that assesses a consumer using the criteria for admission and only admit a consumer who meets the provider’s criteria or is ordered to receive services by the court.
12.2.4. The services and program offered by the behavioral health center must be appropriate for the needs for the consumer.
12.2.5. If, after the consumer is admitted, the behavioral health center is unable to meet his or her needs, the provider shall discharge the consumer and is responsible for referral and placement assistance of the consumer to an alternative level of care or provider.
12.2.6. All consumers being discharged shall have a written discharge summary and reason for discharge entered in the consumer record within 30 days.
12.3. Assessments and Intake Procedures.
12.3.1. Each consumer entering or re-entering a behavioral health center shall have an assessment by an appropriately qualified staff person, as identified by the provider credentialing committee or officer, prior to or within 48 hours of admission.
12.3.2. Assessments from other providers may be acceptable at the provider’s discretion, if comprehensive and performed within the past 45 days.
12.3.3. A consumer re-entering a behavioral health center within a 12-month period may receive an abbreviated assessment. These assessments and updates must be available in the consumer record.
12.3.4. The initial assessment shall review the consumer’s psychiatric and psychosocial history, history of medical and psychiatric treatment, current mental status, current medical and psychiatric status with regard to health and medications prescribed, evaluation of suicidal or homicidal ideation, screening and assessment for trauma, presenting problems as identified objectively and subjectively, and summarize the consumer’s needs and preferences. The initial assessment shall also include recommendations for further evaluation, when appropriate, to identify a consumer’s physical, emotional, and behavioral needs; social strengths; and preferences prior to the finalization of the treatment plan or treatment strategy. Intake documentation shall include all relevant preliminary diagnostic, social, medical, and legal information.
12.3.5. An abbreviated assessment shall review the current mental status, presenting problems identified objectively and subjectively, current medical and psychiatric status with regard to health and medications prescribed, and a summary of consumer needs and preferences.
12.3.6. If needed, psychiatric or psychological assessments shall be conducted by an appropriate professional such as a physician, licensed psychologist, or clinician under supervision of a physician or a licensed psychologist.
12.3.7. The consumer’s plan of services shall be based on the most recent assessment.
12.3.8. The consumer’s assessment must record any medical conditions, allergies, or dietary restrictions. The plan for services must define the provider’s responsibility in management of such conditions, if any, while the consumer is on the provider’s site or under the provider’s supervision. The notification must be posted in the record in a way that is accessible to all staff working with the consumer or there must be documentation that staff has been advised of such conditions.
12.4. Planning for Services.
12.4.1. The provider shall ensure each consumer has a plan of service in a format consistent with the type of service the consumer receives. The plan of service shall be reviewed at 90-day intervals unless other intervals are specified by provider policy and updated or modified as necessary but shall not exceed review dates more than 180 days.
12.4.2. The consumer shall be informed and have the right and the responsibility to participate in the development of the plan of services to the extent that the consumer is willing and medically and behaviorally able.
12.4.3. If the consumer has an advanced psychiatric directive, the provider shall honor the directions provided in the advanced directive.
12.4.4. A consumer, or his or her legal representative, shall sign a written consent prior to initiating treatment and recorded in the consumer record. If written consent is not obtained, the consumer record shall indicate why the written consent was not obtained.
12.5. Participation of the Designated Legal Representative in Planning for Services.
12.5.1. When a consumer has a designated legal representative, the provider must obtain permission from the designated legal representative prior to initiating treatment except in emergent conditions. If emergency treatment is rendered, the designated legal representative must be notified as soon as possible.
12.5.2. If the consumer has a designated legal representative whose scope of responsibility appropriately includes assisting in or directing planning for services for the consumer, the provider is responsible for documenting that the designated legal representative has been informed of all meetings and activities regarding planning. The provider must document a good faith effort to involve the designated legal representative in the planning and review processes. The designated legal representative is entitled to participate in the manner he or she chooses, including by telephone.
12.5.3. If the provider has documented attempts to involve the designated legal representative in the planning process without success, the provider may continue the current plan of service for up to 30 days past its expiration date while alternative plans are made to meet the needs of the consumer or to obtain designated legal representative permission.
12.6. Initial Plan of Service.
12.6.1. When the consumer is admitted to a provider agency, he or she shall have a written, initial plan of projected services and needs and additional assessments recommended at the conclusion of the admission process, not to exceed seven days. The initial assessment shall be entered in the consumer’s record within seven days of admission. At a minimum, this plan shall consist of the following if applicable:
12.6.1.a. Description of any further assessments or referrals that may need to be performed;
12.6.1.b. A listing of immediate interventions to be provided along with some basic objectives for the interventions;
12.6.1.c. A date for development of an expanded plan of services. The designated date must be appropriate for the planned length of service but at no time shall that exceed 30 days from the date of the signing of the initial plan; and
12.6.1.d. The signature of the consumer, designated legal representative, or both; the intake worker; and other persons participating in the development of the initial plan.
12.7. Treatment Plan or Treatment Strategy.
12.7.1. The treatment plan or treatment strategy is developed when a consumer is receiving a variety of services from a single provider provided that if all services are behavioral health services, no expanded plan is required.
12.7.2. The treatment plan or treatment strategy shall be in writing, consider a consumer’s needs and preferences, relate directly to the consumer’s initial or any subsequent assessments or information regarding the consumer, include all services provided to the consumer by the provider developing the plan or strategy, and consist of the following:
12.7.2.a. Date of development of the plan or strategy;
12.7.2.b. Participants in the development of the plan or strategy;
12.7.2.c. A description of the services to be provided, including known outside services, provided to a consumer and directed primarily toward achievement of the expected outcomes and with what frequency the services shall be provided;
12.7.2.d. A statement or statements of the goal or goals of services in general terms;
12.7.2.e. A listing of specific objectives relating to each goal unless the services are supportive in nature;
12.7.2.f. Specific goals shall improve and maintain the mental health and optimal adaptive functioning of the individual and be based on consumer assessments;
12.7.2.g. The measurable objectives to be used in tracking progress toward achievement of an objective, unless the services to be provided are supportive services; have an expected achievement date; and when appropriate, outcomes for discharge;
12.7.2.h. The techniques, services, or both to be used in achieving the objective unless the services are supportive;
12.7.2.i. Identification of the individuals responsible for implementing the services relating to the statement or statements of objectives; and
12.7.2.j. A date for review of the plan or strategy.
12.7.3. Treatment plans for a consumer with complex needs or for one who has experienced a significant change in functional abilities shall be developed and reviewed by an interdisciplinary team.
12.7.4. The plan or strategy shall be reviewed at least every 90 days unless an alternative timeframe is specified in the plan or strategy with rationale explaining the alternate timeframe but shall not exceed 180 days.
12.7.5. Selected objectives may be reviewed earlier than the scheduled plan review as desired by the consumer or provider.
12.7.6. Plans for supportive services are incorporated into the plan of care or treatment strategy and shall include:
12.7.6.a. Services to be provided;
12.7.6.b. How often;
12.7.6.c. By whom; and
12.7.6.d. The objectives of the support.
12.7.7. Objectives of supportive services may be stated in simple terms and outcomes shall be stated in measurable terms. Maintenance of health, daily living skills, or functionality may be an objective for a supportive service.
12.7.8. Diagnoses shall be:
12.7.8.a. Written in standard language as provided in the American Psychiatric Association’s latest edition of the Diagnostic and Statistical Manual of Mental Disorders, the latest edition of the International Classification of Diseases, or the latest edition of the Classification for Mental Retardation of the American Association on Intellectual and Developmental Disabilities (AAIDD); and
12.7.8.b. Based upon accepted professional standards of examinations and factual description of a consumer’s symptoms and problems.
12.7.9. When additional evaluations and assessments are completed, recommendations for treatment and training shall be entered in a consumer’s record.
12.7.10. The provider shall ensure that:
12.7.10.a. A consumer is involved in treatment planning and service delivery to the extent possible;
12.7.10.b. If a consumer attends a school or day program and a release of information is signed by the consumer or his or her designated legal representative, staff may participate with the appropriate educational or day program personnel in the development of the education component of the treatment plan;
12.7.10.c. The treatment plan provides for the review of drug dosages and types, and explains the rationale for changes or continuation of psychotropic drug regimens; and
12.7.10.d. Signed and dated progress notes or other documentation regarding services provided and outcomes are included in the consumer record.
12.8. Coordination of Service.
12.8.1. If a consumer is receiving a combination of behavioral health or support services from a team of provider agencies, the consumer shall have a comprehensive plan of services. Clear, written procedures outlining each provider’s responsibility or responsibilities will be established and made available to staff and be made part of the consumer’s record.
12.8.2. All providers participating in the provision of service to the consumer shall be represented in the development of the comprehensive plan, as shall the consumer or designated legal representative as appropriate. Representation shall be documented by signature of the parties involved in the development of the comprehensive plan.
12.8.3. The team must be made aware of any advanced directives made by the consumer or any instruction for care imposed by the designated legal representative. These directives must be included as an addendum to the plan.
12.8.4. Comprehensive plans may be completed by a case management provider who is responsible for tracking the implementation of the plan and organizing the reviews of the plan and subsequent modifications. The case management provider must be identified in the plan.
12.8.5. The comprehensive plan must clarify which provider agency is responsible for each aspect of the plan. Objectives for behavioral health treatment services must be specific and measurable.
12.8.6. It is the responsibility of the case management provider to ensure that each member of the provider team including the consumer or designated legal representative, or both, has a copy of the plan within seven working days of its completion.
12.8.7. The comprehensive planning process shall culminate in an agreed date for review of progress in reaching the objectives described in the plan.
12.9. Reviews of Treatment Plans or Treatment Strategies.
12.9.1. The review shall be documented and shall consist of examination by the team or provider of progress toward achievement of an objective using the measurements described in the plan or in the case of supportive services, an evaluation of achievement of maintenance objectives.
12.9.2. The consumer and designated legal representative shall be present at the scheduled review. If the consumer, designated legal representative, or both are not present, the reason for holding the review in their absence shall be documented and for good cause.
12.9.3. The review shall summarize the amount of treatment or training provided, document progress toward the objectives, indicate problems that impeded progress, and provide a decision to continue the same plan or to modify it. The provider shall modify objectives and goals if the planned interventions have not produced evidence of improvement or maintenance, if such is the stated goal, within an amount of time to be identified in advance by the clinical team.
12.9.4. The goals or objectives of a plan may be modified if desired by the consumer or designated legal representative.
12.9.5. At the conclusion of the review, a date shall be set for the next review. Service and treatment plans shall be reviewed at least every 90 days by the team or provider unless otherwise specific in the plan but shall not exceed 180 days. Revisions to the behavioral health service plan shall be made if necessary or a new plan may be developed.
12.9.6. Written consent by a consumer, or his or her legal representatives, shall be obtained and recorded in the consumer record. If written consent is not obtained, the consumer record shall indicate why the written consent was not obtained.
12.10. Critical Treatment Junctures.
12.10.1. The provider and consumer shall meet to review and if necessary, modify the consumer’s treatment or supports services at a critical treatment juncture.
12.10.2. Critical treatment junctures occur when:
12.10.2.a. There is a proposed change in placement including admission, transfer, or discharge;
12.10.2.b. There is ongoing non-compliance with treatment;
12.10.2.c. Significant new symptoms are experienced or major changes in a consumer’s condition;
12.10.2.d. There is a significant change in the consumer’s environment, functional ability, health status;
12.10.2.e. Funding for the consumer’s service is significantly reduced or eliminated;
12.10.2.f. The consumer loses eligibility for the service;
12.10.2.g. There is an increase or decrease in service intensity or frequency;
12.10.2.h. An event occurs that will have a deleterious or other effect on services provided to the consumer or his or her response to services; or
12.10.2.i. The consumer or designated legal representative requests an alteration in the services he or she is receiving.
12.10.3. When a critical treatment juncture occurs:
12.10.3.a. The provider shall identify and document the situation or event and assess the immediate consumer needs;
12.10.3.b. The provider, in conjunction with the consumer, designated legal representative, or both, shall make a determination as to a course of action and shall document the course of action adopted;
12.10.3.c. The provider shall document reasons for delay or lack of need for a full meeting of the team but shall implement the agreed modification of services at the earliest opportunity;
12.10.3.d. If there is disagreement between the provider and consumer as to a course of action, the team shall meet at the earliest mutually agreeable time; and
12.10.3.e. When necessary and appropriate, a team meeting shall be held including the consumer, designated legal representative, or both. The team shall:
12.10.3.e.1. Assess the situation;
12.10.3.e.2. Identify any needed alteration to the treatment or services provided;
12.10.3.e.3. Obtain approval from the consumer, designated legal representative, or both for the modification of services; and
12.10.3.e.4. Set a date for the next review of the plan.
12.10.3.f. The team may decide to review all of the plan of services, or only a segment of the plan of services. Regardless of the extent of the review, it must be documented, and a date identified for the subsequent review of the plan in its entirety, not to exceed 90 days from the last review of the entirety of the plan unless other timeframe reviews are described in the plan, but not to exceed 180 days.
12.10.3.g. The consumer, the designated legal representative, or both shall be provided with a copy of the plan for services and any review documents.
12.10.3.h. If a critical treatment juncture occurs for a consumer who has a comprehensive plan for services, the members of the team must be informed of the situation and participate in a decision regarding the need for the team to meet. Participation in this decision may be by telephone or other electronic or digital method.
12.11. Discharge Planning.
12.11.1. Each provider shall have a policy and procedure regarding discharge of the consumer from services.
12.11.2. Such policies shall promote an organized transition to another provider, level, or type of care or to full independence from treatment or support. Discharge planning shall follow the treatment plan. A consumer may not be discharged without appropriate appointments and services in place. If a consumer is discharged without appropriate appointments and services in place, justification and efforts made by the behavioral health center must be documented in the consumer record.
12.11.3. Consumers who are being treated at a behavioral health center pursuant to a court order, civil or criminal, may not choose to be discharged from the behavioral health center against medical advice.
12.11.4. In the event that the consumer, or the consumer’s legal representative on behalf of the consumer who lacks the capacity to make health care decisions, chooses to discharge from the behavioral health facility against medical advice, the behavioral health center shall:
12.11.4.a. Immediately inform the consumer’s health care providers;
12.11.4.b. Educate the consumer, and the consumer’s legal representative, if appropriate, regarding the possible consequences for discharging against medical advice;
12.11.4.c. Provide information about and referral to appropriate community resources, if requested by the consumer or consumer’s legal representative;
12.11.4.d. Document the consumer’s reason for discharging against medical advice, if known; and
12.11.4.e. Document all actions taken and the responses by the consumer, legal representative, or both, in the consumer’s medical record.
12.11.5. With permission from the consumer, designated legal representative, or both, the provider is responsible for ensuring that sufficient information is provided to an alternative provider to enable a smooth transition of care.
12.11.6. The provider is responsible for offering transitional services. If the consumer is an incapacitated adult, the transitional services shall be individualized and delivered in a manner that facilitates the individual’s movement from one health care setting to another.
12.11.7. A written discharge summary shall be entered in the consumer record within 15 days of discharge including, at a minimum, the following:
12.11.7.a. The reason or reasons for discharge;
12.11.7.b. The consumer’s status and condition at the time of discharge;
12.11.7.c. A final evaluation summary of the consumer’s progress toward the goals set in the treatment plan;
12.11.7.d. A plan developed in conjunction with the consumer, when available, for care after discharge and follow-up; and
12.11.7.e. The signature of the staff completing the discharge.
12.12. Medication Services.
12.12.1. The provider shall develop and implement a process for the administration, storage, and accountability of all medication including, but not limited to, provisions for a medication administration record procedure and in compliance with all applicable state and federal laws, rules, and regulations, including the provisions of this rule.
12.12.2. The provider shall obtain and record daily temperatures of all refrigerators that are used to store consumer medications.
12.12.3. The process for prescribing and administering medications shall ensure:
12.12.3.a. That all orders for medications are reviewed at least every 90 days by the physician;
12.12.3.b. That psychotropic drugs are ordered as part of the treatment plan and with documentation of the diagnosis and specific behaviors that indicate a need for the medication and the rationale for its choice;
12.12.3.c. That all medications are administered in compliance with the physician’s or physician extender’s order and state law allowing a one-hour window before and a one-hour window after the physician ordered administration time; and
12.12.3.d. The medication errors, as defined in this rule, and adverse drug reactions are reported immediately in accordance with written procedures including properly recording it in a consumer’s record and notifying the physician who prescribed the drug.
12.13. Special Services and Populations.
12.13.1. If a provider provides specialized services to a unique population the provider shall ensure that:
12.13.1.a. The service and clinical model reflects knowledge and use of evidence-based and theory-guided practices;
12.13.1.b. Clinical and professional staff are appropriately trained, certified, or licensed in the area of service provided;
12.13.1.c. Direct care staff are trained to understand issues in clinical treatment of the population and are able to use suitable intervention techniques when necessary and appropriate;
12.13.1.d. The environment and milieu of the treatment location is clinically, structurally, and developmentally appropriate for the population served; and
12.13.1.e. The facility is suitably secure and staff ratios are consistent with the consumer’s treatment plan. In cases in which a staff ratio is not specified in the consumer’s plan of care, the provider shall assure that sufficient staff is present to enable consumer safety in case of emergency.
12.13.2. Consumer Groupings. Within a behavioral health center, consumer groupings shall occur that:
12.13.2.a. Serve the needs of all consumers including those experiencing a crisis who need an environment that is orderly, peaceful, and respectful for a consumer’s privacy; and
12.13.2.b. Provide staff to consumer ratios, as determined in the assessment and treatment plan or treatment strategy, to ensure adequate protection and supervision.
12.13.3. Group Homes and Residential Treatment Facilities.
12.13.3.a. The provider shall have rules for conduct of consumers to follow while in the residence.
12.13.3.b. The consumers shall be offered and encouraged to consume foods that promote healthful living appropriate to the individual consumer’s treatment plan and assessed needs.
12.13.3.c. Onsite staff shall ensure that each consumer receives training and practices good habits in personal care, hygiene, and grooming.
12.13.3.d. Consumers who require 24-hour staffing shall not be left unattended, including during normal sleeping hours.
12.13.3.e. Consumers shall be referred for ongoing mental health services and assisted in keeping appointments and participating in treatment programs. Documentation of referrals shall be kept in the consumer’s record.
12.14. Abuse, Neglect, and Critical Incidents.
12.14.1. The provider shall report, investigate, monitor, and remediate consumer-related incidents in a manner consistent with minimum current guidelines, “Reporting and Investigation Guidelines for Incidents involving a Licensed Behavioral Health Services and Supports Provider,” set forth by the Director, in consultation of the Inspector General and made available by the Director to providers and the public.
12.14.1.a. These guidelines shall be amended as necessary through a participative process including consultation with providers, consumers, and other stakeholders.
12.14.1.b. The provider’s policy regarding abuse and neglect may allow the provider a range of remediation alternatives with the employee depending upon the severity of the incident and the possibility of successful remediation.
12.14.1.c. These guidelines represent a minimum standard of investigation and correction. Third party payers or providers may voluntarily require a more stringent level of correction.
12.14.2. Incidents shall be evaluated by the provider’s designated representative and classified as one of the following:
12.14.2.a. An allegation of abuse, neglect, or both;
12.14.2.b. A critical incident; or
12.14.2.c. An incident requiring provider monitoring and correction.
12.15. Abuse and Neglect.
12.15.1. A provider shall immediately report to OHFLAC the neglect, abuse, or suspected neglect or abuse of any consumer who receives services from a provider licensed under the conditions of this rule. This requirement mandates self-reporting of neglect, abuse, or suspected neglect or abuse by the service provider.
12.15.2. The initial report shall be made to the Centralized Intake for Abuse and Neglect within 24 hours by telephone followed by a written report to the Office of Health Facility Licensure and Certification within 48 hours.
12.15.3. All employees, contractors, and volunteers of a provider are considered to be mandatory reporters as defined in W. Va. Code §9-6-9.
12.15.4. A consumer has the right to report any suspicion of abuse or neglect to civil and criminal authorities in accordance with W. Va. Code §9-6-1, et seq., in addition to using the grievance procedure of the provider.
12.16. Critical Incident.
12.16.1. Personnel shall immediately notify a supervisor of any critical incident and clear other consumers from the area.
12.16.2. Unless a consumer is in immediate danger to himself, herself, or others, staff shall implement the least restrictive methods of crisis management. If less restrictive methods are not effective, staff may use progressively more restrictive methods of crisis management until the crisis is resolved or other alternatives are established.
12.16.3. The provider must keep a central file of critical incidents for review by the Director upon request.
12.16.4. The file shall contain a description of the incident, actions taken by the provider to mitigate the incident, and, at minimum, a description of systemic corrective action taken by the provider, if any, as a result of the provider investigation utilizing unique, but confidential, consumer identifiers.
12.16.5. The provider shall maintain a system for critical incident reporting and use information from the system to make necessary or appropriate improvements to treatment planning and services.
12.16.6. In the case of a critical incident involving an incapacitated adult, the provider shall follow Office of Health Facility Licensure and Certification policy regarding reporting such events to the Director.
12.17. Non-critical incidents. -- Non-critical incidents must be documented, reviewed by a supervisory staff person, investigated if necessary, and filed in the central incident file.
12.18. Quality Assurance. --
12.18.1. The provider shall ensure that the central file of reports of abuse, neglect, and critical and non-critical incidents is reviewed, collated by the Continuous Quality Improvement committee or staff person, and reported to the governing body on an annual basis. The file shall be representative of efforts by the provider to utilize information to improve provider policy, procedure, performance, or a combination of the foregoing.
12.18.2. The provider shall develop and implement a systems review of the appropriateness and effectiveness of consumer services which includes, at a minimum, an analysis of the results of treatment plan reviews and, when appropriate, of recommendations and reports made by the human rights committee.
12.19. Injuries of Unknown Source.
12.19.1. An injury shall be considered an “injury of unknown source” when:
12.19.1.a. The source of the injury was not witnessed by any person and the source of the injury could not be explained by the consumer; and
12.19.1.b. The injury raises suspicions of possible abuse or neglect because of the extent of the injury or the location of the injury, e.g., the injury is located in an area not generally vulnerable to trauma; or the number of injuries observed at one particular point in time or the incidence of injuries over time.
12.19.2. Minor occurrences which are not of serious consequence to the individual and do not present as a suspicious or repetitive injury as discussed in subdivision 12.19.1.b. of this rule shall be recorded by the facility staff once they are aware of them and follow-up shall be conducted as indicated by provider policy.
12.19.3. If, however, the injury meets both criteria listed in subsection 12.19.1., the injury or injuries must be reported and investigated as required by this rule.
12.19.4. For injuries that do not rise to the level of reportable “injuries of unknown source,” the provider shall follow its policies and procedures for monitoring and trending such occurrences.
12.20. Management of Continued Inappropriate Behavior.
12.20.1. The provider shall have a policy for management of regularly occurring inappropriate behavior on the part of incapacitated or minor consumers.
12.20.2. When a responsible clinician or the service planning team becomes aware that an incapacitated or minor consumer in a residential service program is consistently displaying an inappropriate behavior, a functional assessment of the behavior shall be performed.
12.20.3. The functional assessment may result in informed environmental alterations in the development of a written plan for intervention.
12.20.4. Only trained staff may be responsible for performing functional assessments of behavior and developing and monitoring plans for intervention.
12.20.5. Implementing staff shall be oriented to and fully trained on all behavior management plans for consumers with whom they are working including, but not limited to, methods of de-escalating volatile situations, using non-physical techniques in such situations, and how to deal appropriately with aggressive or out of control behavior. Training shall include demonstration of the procedures to be utilized.
12.20.6. Behavioral intervention plans shall:
12.20.6.a. Be planned and approved by the service planning team;
12.20.6.b. Be individualized, consumer-centered, and applied consistently in all environments managed by the service team;
12.20.6.c. Be based on a functional assessment of the inappropriate behavior;
12.20.6.d. Utilize positive behavior techniques that focus on replacing inappropriate behaviors with more productive pro-social behaviors;
12.20.6.e. Be based on fundamental principles of behavior;
12.20.6.f. Be data-based and monitored on an ongoing basis;
12.20.6.g. Be amended in a timely fashion if necessary;
12.20.6.h. Include positive programming to teach a consumer adaptive, more effective behavior;
12.20.6.i. Ensure that a consumer does not discipline another consumer; and
12.20.6.j. Shall specify the rationale, behavioral objectives, and methods to be used in treatment, and the data to be collected to assess progress toward objectives.
12.20.7. The following aversive consequences are not to be utilized by providers:
12.20.7.a. The application of painful stimuli to the body in an attempt to terminate behavior or as a penalty for behavior but not including aversive procedures or stimuli, including, but not limited to, corporal punishment or use of electric shock devices;
12.20.7.b. Deprivation of basic human rights;
12.20.7.c. Treatment of a demeaning nature;
12.20.7.d. Noxious or painful stimuli;
12.20.7.e. Deprivation of nutrition or hydration, excluding dietary or fluid restrictions ordered by a physician or physician extender;
12.20.7.f. Behavioral interventions that inflict physical or psychological pain; and
12.20.7.g. Conditions that promote maladaptive behavior.
12.20.8. Restraint techniques shall only be incorporated into a behavioral intervention if it is used as an intervention of last resort and only when the targeted behavior is immediately dangerous to the consumer or others in the environment. Detailed reasons for the use of restraint shall be documented, along with attempts at the use of the least restrictive intervention that will be effective to protect the consumer, a staff member, or others from harm.
12.20.9. When behavioral intervention or emergency control measures are used, a detailed report shall be written and include, but not limited to, describing the incident and the rationale for the use of the behavioral intervention or emergency control measures.
12.20.10. Behavioral intervention shall be monitored and altered if side effects such as illness or severe physical or emotional stress or damage occur or are likely to occur.
12.21. Emergency Management of Potentially Dangerous Behavior.
12.21.1. The provider shall have in place policies and procedures regarding emergency management of potentially dangerous consumer behavior.
12.21.2. Seclusion is not an intervention permitted in any licensed community-based program.
12.21.3. Staff shall be trained and able to demonstrate competency in systematic de-escalation procedures as part of orientation. Training for direct care staff shall be renewed at intervals determined by provider policy but occur no less than yearly.
12.21.4. The provider must require staff to have education, training, and demonstrated knowledge in regard to the safe application and use of all types of restraints used, including, but not limited to, training in how to recognize and respond to signs of physical and psychological distress.
12.21.5. Staff must have education, training, and demonstrated knowledge based upon the specific needs of consumers being served. Training shall consist at a minimum of the following:
12.21.5.a. Techniques to identify staff and consumer behaviors, events, and environmental factors that may trigger potentially dangerous behavior;
12.21.5.b. Use of nonphysical intervention skills;
12.21.5.c. Selection of least restrictive and least intrusive intervention based on individualized assessment; and
12.21.5.d. Safe application and monitoring of restraint as a last resort if provider policy allows restraint as an intervention.
12.21.6. Prior to or without a physician’s order, a consumer shall not be placed in a restraint until he or she is either:
12.21.6.a. Examined by an attending physician or other licensed healthcare professional and a discussion is held between a member of the professional staff and available interdisciplinary team members; or
12.21.6.b. A physician or other licensed healthcare professional has ordered by telephone these emergency interventions after a member of the professional healthcare staff has discussed the situation with the available interdisciplinary team members. In the event, an emergency intervention is required, refer also to subsection 12.21.11. of this rule.
12.21.7. Physical, mechanical, or chemical restraints may be used only as a last resort for the management of dangerous, violent, or self-destructive behavior that is an immediate threat to the consumer’s physical safety or the safety of others in the immediate environment.
12.21.7.a. The use of restraints must be in accordance with a written modification to the consumer’s treatment plan.
12.21.7.b. The use of restraint must be in accordance with the order of a physician or other licensed independent practitioner who is responsible for the care of the consumer and authorized to order restraint by provide policy in accordance with state law. Orders for use of restraint must never be written as a standing order or on an as-needed basis.
12.21.7.c. A restraint does not include devices used to treat a medical condition.
12.21.7.d. All supportive or protective devices shall be assessed by the team for safety and appropriateness at annual intervals or more frequently as determined by provider policy.
12.21.7.e. Restraint may only be used when less intrusive interventions have been exercised and determined, through documentation pursuant to this rule, to be ineffective to protect the consumer or others from harm. No restraint may be utilized for more than a half hour without review of the consumer’s condition by a licensed clinician to evaluate the consumer’s immediate situation, the consumer’s reaction to the intervention, and the consumer’s medical and behavioral condition. No restraint order shall be valid for more than three hours. If ordered for longer, the interdisciplinary team shall review a consumer’s status and develop a written plan for responding to a consumer’s needs.
12.21.7.f. Before writing an order for the use of restraint for the management of violent or self-destructive behavior, a physician, physician extender, or other licensed independent practitioner who is responsible for the care of the consumer and authorized to order restraint by provider policy in accordance with state law must see and assess the consumer.
12.21.7.g. The use of restraint must be implemented in accordance with safe and appropriate techniques.
12.21.7.h. The restraint must be discontinued at the earliest possible time.
12.21.8. Documentation in the consumer’s record must include the following:
12.21.8.a. A description of the consumer’s behavior and the danger it posed to self or others;
12.21.8.b. A description of the alternatives or other less intrusive interventions that were attempted prior to the restraint;
12.21.8.c. A description of the intervention used, including the duration of the restraint if physical or mechanical or dosage if chemical; and
12.21.8.d. The consumer’s response to all the intervention or interventions used.
12.21.9. Provider policy regarding restraints must include a requirement of a debriefing of any restraint used.
12.21.10. If a consumer receiving extended services exhibits a behavior which is immediately dangerous to himself or herself or others at a rate of three or more times in a six-month period, the provider shall convene the clinical team to consider development of a written plan for behavioral intervention.
12.21.11. When a psychiatric emergency exists and less restrictive measures are not effective, the provider may utilize intrusive measures to the least restrictive extent necessary to protect the consumers or others in the immediate environment until the crisis is immediately resolved or the consumer can be transported to a higher level of care.
12.22. Medical and Dental Procedures for Incapacitated Adults and Children with Developmental Disabilities.
12.22.1. Whenever indicated or warranted, a desensitization procedure shall be developed in advance to prepare incapacitated adults and children with developmental disabilities for a medical or dental procedure.
12.22.2. If the desensitization procedure is not successful in easing the consumer’s agitation, anxiety or fear, medicinal interventions are to be used in preference to mechanical restraints unless otherwise agreed by the clinical team.
12.22.3. All efforts to prepare and manage a consumer during a medical or dental procedure shall be documented in the consumer’s medical record.
12.23. Standards for Respite and Personal Attendant Services.
Staff providing respite and personal attendant services must receive the following training or orientation prior to assuming care of a consumer:
12.23.1. Specific information pertaining to the needs, preferences, and medical issues of the consumer for whom the staff is assuming care;
12.23.2. List of tasks for which the personal attendant or respite provider is responsible, including any unusual circumstances that could reasonably be predicted in advance;
12.23.3. List of emergency contacts including emergency contact numbers for primary caregiver and for staff supervisor;
12.23.4. Training in any specific protocols contained within the consumer’s plan for services as appropriate;
12.23.5. Review of mandatory reporting obligations;
12.23.6. Any emergency procedures unique to the consumer and his or her medical or behavioral needs;
12.23.7. Orientation to the consumer’s home or other service location; and
12.23.8. Boundary definition regarding the relationship of staff to primary caregiver and other family members, chain of supervisory responsibility, appropriate use of consumer resources such as food or equipment, and other issues as necessary and appropriate.
12.24. Supervision of the respite or personal attendant employee shall be the responsibility of the employing agency with regular input and consultation by the primary caregiver, consumer, or both. The agency shall provide onsite supervision of staff on a regular schedule as described by agency policy with the permission of the consumer, primary caregiver, or both. Supervision activities shall be documented by the agency.
12.25. If the respite or personal attendant service is provided at a location away from the consumer’s primary residence, the location must be safe and free from immediate threat of harm to the consumer. The location must consider the needs and preferences of the consumer and his or her primary caregiver.
12.26. The respite or personal attendant provider is responsible for complying with applicable services or conditions outlined in the consumer’s plan for services during the time in which the staff person is providing services for the consumer.
12.27. Documentation must include:
12.27.1. Any unusual incidents or events occurring during the period;
12.27.2. A summary of the activities of the consumer during the period;
12.27.3. Any health or behavioral issues which were of significance during the period; and
12.27.4. Any medications including dosages that were taken by the consumer during the period.
12.28. Standards for Residential Services.
12.28.1. The provider is responsible for ensuring that staff receives an orientation to the plan for services for all consumers in the home, to include:
12.28.1.a. Dietary issues as necessary and appropriate;
12.28.1.b. Unique health considerations;
12.28.1.c. Crisis plans or advance psychiatric directives, if any;
12.28.1.d. Training in any specific protocols contained within the consumer’s plan for services as appropriate;
12.28.1.e. Common behavioral issues and management; and
12.28.1.f. A description of unique consumer preferences for those unable to express them directly.
12.28.2. In addition, staff shall be provided with:
12.28.2.a. A list of tasks for which the staff member is responsible;
12.28.2.b. A list of emergency contacts including emergency contact number for staff supervisor;
12.28.2.c. A review of mandatory reporting obligations;
12.28.2.d. An orientation to the consumer’s home or other service location;
12.28.2.e. A review of boundary definition regarding staff use of consumer resources such as food or equipment; and
12.28.2.f. Immediate, in-home access to relevant information in a consumer’s medical record in order to provide safe and appropriate care to consumers.
12.28.3. The provider must ensure that in-home staff has access to 24-hour emergency telephone contacts for supervisory staff and for parents or guardians.
12.28.4. The provider shall ensure that in-home staff has knowledge of mandatory reporting procedures and the reporting number must be easily available in the home.
12.28.5. Staff must be trained in emergency evacuation procedures.
12.28.6. The provider shall ensure availability in the home of commonly needed company policies and procedures for staff reference. The provider shall have a policy which identifies those sections of the provider staff manual that shall be available in the homes.
12.28.7. The provider is responsible for training staff to be supportive of the consumer’s:
12.28.7.a. Needs and preferences;
12.28.7.b. Behavioral and health management issues; and
12.28.7.c. Privacy.
12.28.8. The provider shall have a process in place to address consideration of appropriate blending of consumer populations regarding gender, developmental age, activity level, and consumer preferences in congregate living situations.
12.28.9. The service environment shall be appropriate to the physical and health needs of consumers and shall be safe from threat of immediate harm for consumers and staff.
12.28.10. The provider is responsible for monitoring and facilitating the consumer’s health, including, but not limited to, providing staff coverage, as described in the individual consumer’s assessment and treatment plan or treatment strategy, to manage all consumers at the residential facility.
12.28.11. The provider is responsible for linkage and referral to address the consumer’s acute medical and psychiatric health concerns.
12.28.12. A referral must be made for basic primary care at least once per year.
12.28.13. Health considerations shall be incorporated into a residential consumer’s plan of services and providers shall be responsible for advocating that unmet needs be addressed. The case management agency shall be responsible for advocacy if the consumer has a case manager.
12.28.14. The provider shall assist the consumers in the service environment to develop a homelike atmosphere that addresses the preferences of the individuals residing in the environment, taking into consideration the financial resources of the residents.
12.28.15. The provider shall have a process in place for facilitating choices of activity and home management that respects the needs and preferences of the residents. The provider shall promote consumer choices and control within the household to the degree possible and clinically appropriate.
12.28.16. The provider shall develop and implement policies and procedures for the transfer to an appropriate acute care facility for a consumer who poses an imminent physical danger to himself, herself, or others.
12.28.17. The provider shall develop and maintain a process for communication from one shift of staff to the next that conveys information necessary to conduct business in the home. Additionally, the provider shall supply a method of communicating information regarding consumers from one shift to the next in a confidential manner. Such communication shall include:
12.28.17.a. Any unusual incidents or events occurring during the shift;
12.28.17.b. Any health or behavioral issues which were of significance during the shift; and
12.28.17.c. Any medications that were taken by the consumer(s) during the shift.
12.28.18. If the home is owned or leased by a provider, it must have:
12.28.18.a. Adequate bedroom and living space for the number of consumers living within the home;
12.28.18.b. Private space for storing personal items for each consumer;
12.28.18.c. Adequate heating and cooling;
12.28.18.d. External windows in consumer bedrooms;
12.28.18.e. Adequate number of bathrooms and bathing facilities for the number of consumers residing within the home;
12.28.18.f. Hinged doors in bedroom doorways; and
12.28.18.g. Appropriate access for physically disabled or challenged consumers.
12.28.19. If the home is owned or leased by the consumer or DLR, the provider shall respect the consumer’s choice of living environment and resources while advocating for adequate housing and living conditions: Provided, That nothing obligates the provider to supply services in an unsafe environment. If the provider suspects that an incapacitated consumer is living in unsafe conditions, the provider is obligated to conform to statutes regarding mandatory reporting.
12.29. Standards for 24-hour Programs Requiring Medical Monitoring.
12.29.1. The provider must supply adequate staff monitoring of individuals in the program either through “eyes on” or technological methods, which do not violate the consumer’s right to privacy and confidentiality. The initial plan of services shall detail the necessary monitoring which may be modified on an ongoing basis as treatment moves forward and the plan of services is revised.
12.29.2. A medical staff person such as a physician, physician extender, registered nurse, or licensed practical nurse functioning within his or her scope of practice must evaluate each patient in the program each shift unless the physician documents no further need for medical monitoring, provided that no such order can occur until the consumer has been in the program for 24 hours.
12.29.3. The provider must have a policy regarding the face-to-face or telemedicine availability of medical staff to directly observe the patient after hours within 30 minutes as necessary and appropriate unless an arrangement is made for alternative medical care.
12.29.4. Behavioral health centers providing medical stabilization must provide or arrange to obtain prescribed psychotropic and general medical medications after initial review by admitting medical staff, which shall be a physician or physician extender.
12.29.5. Behavioral health centers providing medical stabilization must assist consumers in obtaining needed medications as part of discharge planning. The provider shall have a policy with associated procedures regarding the ability of consumers to retain personal medications if discharged against medical advice.
12.30. Residential Substance Use Disorder Facilities.
12.30.1. Residential substance use disorder facilities, in addition to the licensure requirements of this rule, shall also be fully accredited with the Commission on Accreditation of Rehabilitation Facilities International, the Joint Commission, or Det Norske Veritas to operate an inpatient facility that provides behavioral health services.
12.30.2. Residential substance use disorder facilities licensed by the Office of Health Facility Licensure and Certification pursuant to this rule as of May 20, 2024, must receive accreditation as described in section 12.30. of this rule no later than January 1, 2026, and submit evidence of the same to the Office of Health Facility Licensure and Certification.
12.30.3. Any new residential substance use disorder facility, as a result of beginning new operations, opening a newly licensed location, or a lawful change of ownership including a new license, after May 20, 2024, shall be required to receive accreditation as described in section 12.30.1. of this rule within one year of the initial licensure by the Office of Health Facility Licensure and Certification. The facility shall submit evidence of the same to the Office of Health Facility Licensure and Certification.
12.30.4. Residential substance use disorder facilities shall renew accreditation as described in section 12.30.1. at intervals required by the applicable accrediting body. If, for any reason, a facility’s required accreditation lapses, the facility shall notify the Office of Health Facility Licensure and Certification in writing within two business days. The Office of Health Facility Licensure and Certification may take any action as authorized by this legislative rule.
12.30.5. In the event that the requirements of W. Va. Code §9-5-29a expire, subsections 12.30.1., 12.30.2., and 12.30.3. also shall expire.
12.30.6. All residential substance use disorder facilities are subject to the provisions of W. Va. Code §16-2D-9(5).
W. Va. Code R. § 71-25-13 Administrative Due Process, Administrative Appeals, and Judicial Review
13.1. The Director, in consultation with the Inspector General may deny the provider’s application for licensure or licensure renewal; modify or revoke a license; or order any admissions ban or reduction in consumer census for one or more of the following reasons:
13.1.1. The provider fails to submit an adequate plan of correction without formally and timely notifying the Director that the provider intends to exercise its due process rights of appeal;
13.1.2. The Director makes a determination that fraud or other illegal action has been committed;
13.1.3. The provider violates federal, state, or local law relating to building, health, fire protection, safety, sanitation, or zoning; or is noncompliant with payment of workers’ compensation or employment security taxes, and fails to remedy such violation given sufficient notice;
13.1.4. The provider conducts practices which jeopardize the health, safety, welfare, or clinical treatment of consumers;
13.1.5. The provider fails or refuses to make records related to compliance with this rule available within a reasonable period of time as requested by the Director; or
13.1.6. The provider refuses to provide access to its service locations within a reasonable period of time as requested by the Director.
13.2. Where the operation of a behavioral health center clearly constitutes an immediate danger of serious harm to consumers served by the behavioral health center, the Director, in consultation with the Inspector General may issue an order of closure terminating operation of all or a specific segment of the provider’s behavioral health center license clearly giving rise to the immediate danger of serious harm. A provider appealing such a closure order may continue to operate all or the specified portion of the behavioral health center license pending exhaustion of administrative appeals, judicial appeals, or both.
13.3. Any person, partnership, association, or corporation which establishes, conducts, manages, or operates a behavioral health center without first obtaining a license as herein provided, or who commits a violation as described in this section may be assessed a civil money penalty by the Director, in consultation with the Inspector General in accordance with this section. Each day of continuing violation after a civil money penalty is assessed may be considered a separate violation.
13.3.1. If a behavioral health center is found to be in violation of any provision of this rule, unless otherwise noted herein, the Director, in consultation with the Inspector General may limit, suspend, or revoke the behavioral health center’s license: Provided, That the Director, in consultation with the Inspector General may only suspend or revoke a license, if the licensee commits a violation which endangers the health, safety, or welfare of a person;
13.3.2. If the behavioral health center fails to take action to correct a violation after being cited for the violation, the Director, in consultation with the Inspector General may impose a civil money penalty not to exceed $10,000 and, in the case of an owner-operator behavioral health center, limit or revoke the behavioral health center’s license;
13.3.3. If the behavioral health center conducts practices which jeopardize the health, safety, welfare, or clinical treatment of consumers when such practices clearly give rise to imminent danger of serious harm or the immediate risk of imminent danger of serious harm, the Director, in consultation with the Inspector General may impose a civil money penalty not to exceed $10,000;
13.3.4. If an owner of a behavioral health center concurrently operates an unlicensed behavioral health center, the Director, in consultation with the Inspector General may impose a civil money penalty upon the owner not to exceed $5,000 per day;
13.3.5. If the owner of a behavioral health center that requires a license under this rule fails to apply for a new license for the behavioral health center upon a change of ownership and operates the behavioral health center under new ownership, the Director, in consultation with the Inspector General may impose a civil money penalty upon the owner, not to exceed $5,000; or
13.3.6. If an owner operates, owns, or manages an unlicensed behavioral health center that is required to be licensed pursuant to this rule; obtains a license to operate a behavioral health center through misrepresentation or fraud; or procures or attempts to procure a license for a behavioral health center for any other person by making or causing to be made any false representation, the Director, in consultation with the Inspector General may assess a civil money penalty of not more than $20,000. Any penalty may be in addition to or in lieu of any other action that may be taken by the Inspector General or any other board, court, or entity.
13.3.7. If an owner knowingly operates, owns, or manages an unlicensed behavioral health center that is required to be licensed pursuant to this rule; obtains a license to operate a behavioral health center through misrepresentation or fraud; or procures or attempts to procure a license for a behavioral health center for any other person by making or causing to be made any false representation, the Director, in consultation with the Inspector General may assess a civil money penalty of not more than $20,000. Any penalty may be in addition to or in lieu of any other action that may be taken by the Inspector General or any other board, court, or entity.
13.4. Notwithstanding the existence or pursuit of any other remedy, the Inspector General may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, or corporation to restrain or prevent the establishment, conduct, management, or operation of any behavioral health center or violation of any provision of this rule without first obtaining a license therefore in the manner hereinbefore provided.
13.4.1. The Inspector General may also seek injunctive relief if the establishment, conduct, management, or operation of any behavioral health center, whether licensed or not, jeopardizes the health, safety, or welfare of any or all of its consumers.
13.4.2. In determining whether a penalty is to be imposed, the Director, in consultation with the Inspector General shall consider the following factors:
13.4.2.a. The gravity of the violation, including the probability that death or serious physical or emotional harm to a consumer has resulted, or could have resulted, from the behavioral health center’s actions or the actions of the owner or any staff employed by or associated with the behavioral health center, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;
13.4.2.b. What actions, if any, the owner or staff took to correct the violations;
13.4.2.c. Whether there were any previous violations at the behavioral health center; and
13.4.2.d. The financial benefits that the behavioral health center derived from committing or continuing to commit the violation.
13.5. Upon finding that a registered or licensed professional has violated the provisions of this rule, the Director shall provide notice of the violation to the applicable professional licensing board.
13.6. Before any behavioral health center license is limited, denied, suspended, or revoked or a civil money penalty is assessed, written notice shall be given to the owner or owners of the program, stating the grounds of the denial, suspension, revocation, or penalty and the date set for any enforcement action and the date due for any civil money penalty.
13.6.1. The notice shall be sent by certified mail or electronically transmitted to the owner or owners at the address where the behavioral health center concerned is located.
13.6.2. Within 10 days of receipt of the notice, the owner or owners may submit a request for an administrative hearing or an informal meeting to address and resolve the findings.
13.6.3. The behavioral health center and its owner or owners shall be entitled to be represented by legal counsel at the informal meeting or at the hearing at their own expense.
13.6.4. All of the pertinent provisions of W. Va. Code §29A-5-1, et seq., and 69CSR1 shall apply to and govern any hearing authorized by this rule.
13.6.5. If an owner fails to request a hearing within the time frame specified, he or she shall be subject to the full penalty imposed.
13.6.6. The filing of a request for an administrative hearing or an informal meeting does not stay or supersede the enforcement of a limitation, denial, suspension or revocation of a license; the assessment of a civil money penalty; or an enforcement order.
13.7. Informal dispute resolution. -- A provider or licensee adversely affected by citation of a deficient practice issue pursuant to this article or by a citation issued for a deficient practice pursuant to federal law may request the informal dispute resolution process. A provider may contest a cited deficiency as contrary to law or unwarranted by the facts or both. A provider may choose to have the review completed by an independent review organization. Informal dispute resolution is not available for situations described in section 13.6. of this rule and is only available regarding the citation of a deficient practice issue.
13.7.1. The Director, in consultation with the Inspector General shall contract with independent review organizations to conduct an independent informal dispute resolution process. The independent review organization shall be accredited by the Utilization Review Accreditation Commission.
13.7.2. The informal dispute resolution process is not a formal evidentiary proceeding and utilizing the informal dispute resolution process does not waive the provider’s right to a formal hearing.
13.7.3. The informal dispute resolution process consists of the following:
13.7.3.a. No later than 10 working days following the last day of the survey or inspection, the Director shall transmit to the provider a statement of deficiencies committed by the behavioral health center. Notification of the availability of the informal dispute resolution process, including the option of an independent review organization, and an explanation of the informal dispute resolution process shall be included in the transmittal.
13.7.3.b. Within 10 working days of receipt of the statement of deficiencies, the provider shall return its plan of correction for the cited deficiencies to the Director and may request in writing the informal dispute resolution process to refute the cited deficiencies. The provider must submit its supporting documentation and indicate its request for the informal process at the time of submission. No plan of correction is required for citations under appeal. The Director may not release the report to the public until appealed citations are resolved.
13.7.3.c. Within five working days of receipt of the written request for the informal dispute resolution process made by a provider, the Director, dependent upon the provider’s request, shall refer the request to an internal team not associated with the survey event to an independent review organization from the list of certified independent review providers approved by the state. The Director shall vary the selection of the independent review organization on a rotating basis.
13.7.3.d. Within 10 working days of receipt of the written request for the informal dispute resolution process made by a provider, the informal dispute resolution conference shall be scheduled unless additional time is requested by the provider. Before the informal dispute resolution conference, the provider may submit additional information.
13.7.3.e. Neither the Director nor the provider shall be accompanied by counsel during the informal dispute resolution conference. The manner in which the informal dispute resolution conference is held is at the discretion of the independent review organization, but is limited to:
13.7.3.e.1. A desk review of written information submitted by the provider;
13.7.3.e.2. A telephonic conference; or
13.7.3.e.3. A face-to-face conference held at the behavioral health center’s location or a mutually agreed upon location.
13.7.3.f. If the independent committee determines the need for additional information, clarification, or discussion after conclusion of the informal dispute resolution conference, the Director, the provider, or both, shall present the requested information.
13.7.3.g. Within 10 working days of the informal dispute resolution conference, the review committee shall make a determination based upon the facts and findings presented and shall transmit a written decision containing the rationale for its determination to the Director.
13.7.3.h. If the Director disagrees with the determination, the Director, in consultation with the Inspector General may reject it and shall issue an order setting forth the rationale for the reversal of the independent review committee’s decision to the provider within 10 working days of receiving the determination. The Director may not assign review of the rejection to a designee.
13.7.3.i. If the Director accepts the determination, the Director shall issue an order affirming the determination within 10 working days of receiving the independent reviewer’s determination.
13.7.3.j. If the independent review committee determines that the original statement of deficiencies should be changed as a result of the informal dispute resolution process and the Director accepts the determination, the Director shall transmit a revised statement of deficiencies to the provider within 10 working days of receipt of the determination.
13.7.3.k. Within 10 working days of receipt of the Director’s order and the revised statement of deficiencies, the provider shall submit a revised plan to correct any remaining deficiencies to the Director.
13.7.4. Under the following circumstances, the provider is responsible for certain costs for the independent informal dispute resolution review, which shall be remitted to the Director within 60 days of the informal dispute resolution order:
13.7.4.a. If the provider requests a face-to-face conference, the provider shall pay any costs incurred by the independent review that exceed the cost of a telephonic conference, regardless of which party ultimately prevails.
13.7.4.b. If the independent decision supports the entirety of the originally written contested deficiency or adverse action taken by the Director, the provider shall reimburse the Director for the cost charged by the independent review organization. If the independent decision supports some of the originally written contested deficiencies, but not all of them, the independent reviewer shall rule as to approximate portions of the expense of the hearing to be paid by each party.
13.8. Administrative Appeals and Judicial Review.
13.8.1. Any party who disagrees with the final administrative decision as a result of the hearing may, within 30 days after receiving notice of the decision, appeal the decision to the West Virginia Intermediate Court of Appeals.
13.8.1.a. The filing of a petition for appeal does not stay or supersede the enforcement of the final decision or order of the Director. An appellant may apply to the West Virginia Intermediate Court of Appeals for a stay of or to supersede the final decision or order.
13.8.1.b. The West Virginia Intermediate Court of Appeals may affirm, modify, or reverse the final administrative decision. Any party may appeal the West Virginia Intermediate Court of Appeals’ decision to the Supreme Court of Appeals.
13.9. Any person aggrieved by an order or other action by the Director based on this rule may request in writing a hearing by the Board of Review in accordance with Rules for Hearings under the Administrative Procedures Act, 69CSR1, a copy of which may be obtained from the Secretary of State.
Series 26 Chronic Pain Management Clinic Licensure
W. Va. Code R. § 71-26-1 General
1.1. Scope. -- This legislative rule establishes standards and procedures for the regulation of chronic pain management clinics.
1.2. Authority. -- W. Va. Code §16B-7-9.
1.3. Filing Date. -- May 28, 2025.
1.4. Effective Date. -- May 25, 2025.
1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2029.
1.6. Applicability. -- This rule applies to any person, partnership, association, or corporation that operates a chronic pain management clinic.
1.7. Purpose. -- The purpose of this rule is to ensure all West Virginia pain management clinics conform to a common set of standards and procedures. All standards and procedures are minimum requirements whereby pain management clinics may be surveyed and evaluated to ensure the care, treatment, health, safety, and welfare of patients treated therein.
1.8. Enforcement. -- This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provision of W. Va. Code §§16B-7-1, et seq., and this rule, except where otherwise stated.
W. Va. Code R. § 71-26-2 Definitions
2.1. Definitions incorporated by reference. -- Those terms defined in W. Va. Code §§16B-7-1, et seq., are incorporated herein by reference.
2.2. Administer -- The direct application of a drug to the body of a patient by injection, inhalation, ingestion or any other means.
2.3. Administrator -- The individual responsible for the day-to-day non-clinical, business operation of the pain management clinic. The individual shall be qualified by education and training as specified in a job description developed by the owners.
2.4. Adverse Events or Incidents -- An occurrence that may involve an immediate threat to the care or safety of an individual, whether staff member, visitor or patient; an event or circumstance that could have or did lead to harm, loss, or damage to patients or staff.
2.5. Associate -- Any person, firm or corporation that is associated with a pain management clinic through employment, an independent contract, assignment, internship, or other such arrangement that provides access to the clinic, patient records, or medications.
2.6. Clinic Staff -- All persons who work at or for a pain management clinic, paid or unpaid. Staff members may include owners, employees, associates, volunteers, or contracted agents.
2.7. Complaint or Grievance -- A verbal or written statement made by any person and filed with the clinic administrator or a state agency alleging inadequate or inappropriate service on the part of a pain management clinic.
2.8. Controlled Substances Monitoring Program Database -- The database maintained by the West Virginia Board of Pharmacy that monitors and tracks controlled substances prescribed and dispensed by prescribing practitioners or pharmacists in West Virginia.
2.9. Criminal Records Check -- An investigation of criminal records from law enforcement agencies and the Federal Bureau of Investigation.
2.10. Designated Physician Owner -- An owner of a chronic pain management clinic who is fully accountable and responsible for all the aspects of the operation of the clinic. The percentage of ownership shall be more than 25 percent and shall not be a de minimis amount.
2.11. Dispense -- The preparation and delivery of any medication, including controlled substances, by a physician or pharmacist to a patient pursuant to an order of a physician, including the prescribing, packaging, labeling, administering, or compounding necessary to prepare that drug for delivery.
2.12. Informed Consent -- Written acknowledgement and verification by a patient stating that the patient has been informed of the risks and benefits of all aspects of the treatment provided to the patient and that the patient agrees to the treatment.
2.13. Opioid Drug Product -- Any finished dosage form that contains as one of its active ingredients a drug substance that has pharmacological properties similar to morphine, including its analgesic action and its addiction-forming or addiction-sustaining liability, or that can be converted by the body into a drug substance having such properties. Opioid drug products include, but are not limited to, those containing morphine, codeine, hydrocodone, and oxycodone.
2.14. Pain -- An unpleasant sensory and emotional experience associated with actual or potential tissue damage, or described in terms of such damage.
2.15. Plan of Care -- A written plan of treatment and care, which includes a signed treatment agreement from the patient, developed by a patient’s physician and other health care professionals in conjunction with the patient that outlines for the patient attainable short-term treatment goals that are mutually acceptable to the patient and the pain management clinic and which specifies the services to be provided and the frequency and schedule for their provision.
2.16. Plan of Correction -- A written description of the actions the pain management clinic intends to take to correct and prevent the reoccurrence of violations of a rule or policy identified by the designated state oversight agency during an investigation, inspection, or survey.
2.17. Public media -- Any form of communication intended to reach the general public, including, but not limited to, a telephone directory, medical directory, newspaper or other periodical, outdoor advertising, radio or television, or social media.
2.18. Terminal Condition -- An illness or disease that cannot be cured and the medical prognosis is that the individual’s life expectancy is six months or less if the illness runs its normal course.
2.19. Treating Physician -- A physician who maintains primary responsibility for the examination and treatment of his or her patients.
2.20. Unique Patient Encounter -- A single patient with multiple visits to a pain management clinic, in any given month, that is counted as one clinic patient for calculation purposes.
W. Va. Code R. § 71-26-3 Pain Clinic Definition and Exemptions
3.1. A pain management clinic is any privately owned, clinic, facility or office, not otherwise exempted, that treats patients for chronic pain as defined by W. Va. Code §16B-1-2, and;
3.1.1. The primary component of the medical practice of the clinic, facility or office is treatment of chronic pain for non-malignant conditions;
3.1.2. More than 50 percent of patients in any one month of the clinic are provided treatment for chronic pain for nonmalignant conditions that are not terminal and are prescribed, administered or dispensed Schedule II opioid drug products or other Schedule II controlled substances for such diagnosis;
3.1.3. The calculation of more than 50 percent of patients will be calculated by dividing the number of unique patient encounters at the clinic, facility or office during any one month for a diagnosis of chronic nonmalignant pain for conditions that are not terminal and pursuant to such diagnosis of chronic nonmalignant pain for conditions that are not terminal were prescribed, administered, or dispensed Schedule II opioid drugs or other Schedule II controlled substances by the total number of all patient encounters at the clinic, facility, or office during any month; and
3.1.4. Patients receiving Schedule II opioid drug products or other Schedule II controlled substances for treatment of any injury or illness that lasts or is expected to last 30 days or less shall not be included in the calculation of more than 50 percent of all patients. Clinics below the 50 percent patient calculation threshold will be subject to continued monitoring by the Office of Health Facility Licensure and Certification for changes in the patient ratio. Failure to cooperate with requests for information to verify patient calculations may subject the clinic to penalties and equitable relief pursuant to section 18 of this rule.
3.1.5. A pain management clinic shall not offer a bounty, monetary, or equipment or merchandise reward, or free services for individuals in exchange for recruitment of new patients into the clinic. A pain clinic shall not recruit new patients for the purpose of attempting to circumvent the licensure requirement of this rule.
3.2. The following facilities are not pain management clinics subject to the requirements of this rule:
3.2.1. A facility that does not prescribe or dispense controlled substances for the treatment of chronic pain;
3.2.2. A hospital licensed in this state, a facility located on the campus of a licensed hospital that is owned, operated or controlled by that licensed hospital, and an ambulatory health care facility as defined by W. Va. Code §16-2D-2 that is owned, operated or controlled by a licensed hospital;
3.2.3. A physician practice owned or controlled, in whole or in part, by a licensed hospital or by an entity that owns or controls, in part, one or more licensed hospitals;
3.2.4. A hospice program licensed in this state;
3.2.5. A nursing home licensed in this state;
3.2.6. An ambulatory surgical facility as defined by W. Va. Code §16-2D-2;
3.2.7. A facility conducting clinical research that may use controlled substances in studies approved by a hospital-based institutional review board or an institutional review board accredited by the association for the accreditation of human research protection programs; and
3.2.8. Any other facility granted an exemption by the Director pursuant to W. Va. Code §16B-7-5(b), including, state-owned and operated hospitals.
3.3. Any facility that is not exempted pursuant to this section may petition the Director for an exemption from the requirements of this rule. All such petitions are subject to the administrative procedures requirements of W. Va. Code §§29A-1-1, et seq.
W. Va. Code R. § 71-26-4 Licensure
4.1. General Licensure Provisions.
4.1.1. No person, partnership, association, or corporation may operate a pain management clinic in the state of West Virginia without first obtaining a license.
4.1.2. A license is valid only for the location and persons named and described in the application.
4.1.3. Each pain management clinic location shall be licensed separately, regardless of whether the clinic is operated under the same business name or management as another clinic.
4.1.4. Each licensed clinic location shall designate a physician owner unique to that clinic. The designated physician owner shall practice at the clinic and be responsible for the operation of the clinic in accordance with the requirements of this rule.
4.1.5. A license is not transferable or assignable.
4.1.6. If the ownership of a pain management clinic changes, the new owner shall notify the Director within 10 days and immediately apply for a new license. The new owner’s application for a license has the effect of a valid license for three months from the date the application is received by the director.
4.1.7. The pain management clinic shall notify the Director in writing 30 days prior to a change in the name or location of the clinic and submit an application form for a license amendment.
4.1.8. If there is a change in the designated physician owner, the pain management clinic must comply with the provisions of subsection 6.4.3. of this rule.
4.1.9. Initial and renewal licenses shall expire one year from issuance.
4.1.10. If the pain management clinic is not in substantial compliance with this rule but does not pose a significant risk to the health, safety, or rights of the patients a license expiring in less than one year may be issued.
4.1.11. A licensure survey may be conducted periodically during the course of the annual licensing term.
4.1.12. The Director or his or her designee may enter the premises of any practice, office, or facility if the Director has reasonable belief that it is being operated or maintained as a pain management clinic without a license.
4.1.13. If the owner or person in charge of a licensed pain management clinic or of any other unlicensed practice, office, or facility which the Director has reasonable belief that it is being operated as a pain management clinic refuses entry pursuant to this rule, the Inspector General shall petition the Circuit Court of Kanawha County for an inspection warrant.
4.1.14. If the Director finds on the basis of an inspection that any person, partnership, association, or corporation is operating as a pain management clinic without a license, the pain management clinic shall apply for a license within 10 days.
4.1.15. A pain management clinic that fails to apply for a license is subject to the penalties established by sections 17 and 18 of this rule.
4.1.16. A pain management clinic shall surrender an expired, revoked, or otherwise invalid license to the Director upon written demand.
4.2. Initial license.
4.2.1. An applicant shall submit a completed application to the Director, on a form prescribed by the Director. A non-refundable fee required by section 4 of this rule shall be submitted with the application.
4.2.1.a. A new clinic shall apply for an initial license within the first 30 days of operation.
4.2.1.b. An existing practice shall apply for an initial license not less than 30 days and not more than 60 days once the pain management patient census is more than 50 percent, pursuant to the definition in this rule.
4.2.2. The application shall include:
4.2.2.a. The legal name, office location, mailing address, and telephone number of the pain management clinic;
4.2.2.b. The name, address, principal occupation, and official position for each owner. At least one owner shall be a physician with an active license in West Virginia;
4.2.2.c. The name and address of all other pain management clinics owned and operated by the applicant;
4.2.2.d. A description of the organizational structure of the pain management clinic, including the owners, designated physician owner, and administrator;
4.2.2.e. If applicable, a copy of a valid Certificate of Need or a letter of exemption from the West Virginia Health Care Authority;
4.2.2.f. A list of the owners’ and physicians’ names, medical licenses, drug enforcement agency numbers, and any pain management specialty certifications;
4.2.2.g. A list of all business licenses issued by this state, the secretary of state, the state tax department, and all other applicable business or license entities;
4.2.2.h. Days and times of operation;
4.2.2.i. A verified statement that no owner or operator applying for the license has been the owner or operator of a licensed pain management clinic that has had its license suspended or revoked in the five years preceding the date of application;
4.2.2.j. Evidence that each anticipated owner, physician, employee, volunteer, associate, or contracted agent has received an eligibility fitness determination or variance from the West Virginia Clearance for Access: Registry and Employment Screening unit of the Office of Inspector General; and
4.2.2.k. A description of services provided.
4.2.3. The Director shall issue an initial license only after an inspection is completed at the pain management clinic which finds the clinic complies with this rule and W. Va. Code §§16B-7-1, et seq.
4.2.4. If, at the initial licensing survey, a pain management clinic has more than five violations of any minimum requirements or if any cited violation is determined to be of such a serious nature that it may cause or have the potential to cause harm, the Director, in consultation with the Inspector General, shall deny licensing.
4.2.5. If an application for license is denied, the clinic, upon correction of all citations, may reapply for an initial license by submitting a new application together with the applicable fee.
4.3. Renewal license.
4.3.1. An applicant shall submit a completed application to the Director, on a form prescribed by the Director, 60 days prior to the expiration date of the current license. A non-refundable fee required by section 4 of this rule shall be submitted with the application.
4.3.2. The Director shall issue a renewal license when it is found the pain management clinic is determined to be in compliance with this rule and W. Va. Code §§16B-7-1, et seq., and the licensee submits a completed application and the correct renewal fee.
4.4. License fees and Inspection costs.
4.4.1. All applications for an initial or renewal pain management clinic license shall be accompanied by a non-refundable license fee. The annual renewal fee is based upon the total census of the clinic. In addition to the set fee, the annual renewal fee shall be adjusted on the first day of June of each year to correspond with increases in the consumer price index. The Office of Health Facility Licensure and Certification shall post the annual consumer price index increases on its website located at: http://oig.wv.gov/OHFLAC. The base amounts for initial and renewal fees are as follows:
4.4.1.a. Initial license fee - $250;
4.4.1.b. Renewal fee – fewer than 500 patients - $250 plus adjustment;
4.4.1.c. Renewal fee – 500 to 1,000 patients - $500 plus adjustment; and
4.4.1.d. Renewal fee – more than 1,000 patients - $750 plus adjustment.
4.4.2. A pain management clinic shall pay a $400 fee plus the actual costs of the initial inspections made by the Director prior to issuing a license. The cost shall be billed to the pain management clinic or owner(s) by the Director after the inspections and must be paid in full before a license is issued.
4.5. Denial of License.
4.5.1. The Director may deny an application for an initial or renewal license if:
4.5.1.a. The Director determines that the application is deficient in any respect;
4.5.1.b. The pain management clinic will not be or is not operated in accordance with applicable federal or state standards, laws, and rules;
4.5.1.c. The pain management clinic will not permit an inspection or survey to proceed or will not permit in a timely manner access to records or information deemed relevant by the Director;
4.5.1.d. The pain management clinic has made misrepresentations in obtaining licensure;
4.5.1.e. The pain management clinic has an owner, employee or associate who has received an ineligible employment fitness determination from the West Virginia Clearance for Access: Registry and Employment Screening unit of the Office of Inspector General and has not received a variance.
4.5.1.f. The pain management clinic fails to have a designated physician owner practicing at the clinic location; or
4.5.1.g. The pain management clinic fails to have an established process for maintaining current, accessible patient records from admission through discharge.
4.5.2. If the Director determines not to issue a license, the Director shall notify the applicant in writing of the denial and the basis for the decision. Following the denial, the clinic must follow closure procedures in section 17 of this rule, including notification of existing patients.
W. Va. Code R. § 71-26-5 Inspections
5.1. The Director or his or her designee shall conduct unannounced inspections of all pain management clinics that are subject to the provisions of this rule and W. Va. Code §§16B-7-1, et seq., in order to determine compliance. Inspections shall include initial inspections, annual inspections, follow-up inspections, complaint investigations, and periodic inspections.
5.2. During the inspections, the pain management clinic must provide the Director a comprehensive listing of total patients. At a minimum this shall include:
5.2.1. The identifiers of those receiving chronic pain treatment and other services;
5.2.2. The diagnosis for each patient;
5.2.3. The demographic information for each patient, including city and county of residence; and
5.2.4. A list of medications administered, dispensed, or prescribed including the date of the prescription, dispensing, or administration for each patient of the pain management clinic.
5.3. Inspections may include interviews with owners, staff, and patients; review of clinical records; observation of service delivery; review of facility documents and polices; and review of any other documents necessary for the determination of compliance with this rule and W. Va. Code §§16B-7-1, et seq.
5.4. The pain management clinic shall ensure immediate access to all patient records upon request of the Director or his or her designee. If access is denied, a judge of any court of record in this state having criminal jurisdiction, and upon proper oath or affirmation showing probable cause, may issue administrative or inspection warrants for the purpose of conducting inspections and seizures of property appropriate to the inspections.
5.5. Within 20 working days of the exit date of an annual inspection, or 30 working days of the exit date of an initial inspection, the Director shall issue a report to the pain management clinic reflecting the findings of the inspection. The report shall specify any deficiency found and the rule that forms the basis for the violation.
5.6. The designated physician owner or other owners of the pain management clinic shall submit to the Director a plan of correction for any violation of this rule or W. Va. Code §§16B-7-1, et seq., identified during an inspection within 10 working days of receipt of the findings of the inspection. The plan of correction shall include any actions taken to correct the deficiency and prevent the reoccurrence and the date of completion of each action taken.
5.7. The pain management clinic’s plan of correction may be approved or rejected by the Director in writing. If rejected, the reasons shall be stated in a letter.
5.8. The pain management clinic shall submit a revised plan of correction to the Director within 10 working days of receipt of a rejection letter.
5.9. The pain management clinic shall immediately correct any violation that the Director finds constitutes a severe risk to the health or safety of a patient.
5.10. Any person may file a complaint with the Director alleging violations of this rule and W. Va. Code §§16B-7-1, et seq. If a complaint investigation is completed, the Director shall notify the complainant of any violations discovered upon written request made by the complainant.
5.11. The Director shall keep on file a report of any inspection of a pain management clinic.
5.12. Nothing contained in this section shall be construed to require or permit the public disclosure of confidential medical, social, personal or financial records of any patient or clinic, nor any information required to be kept confidential by state or federal law.
W. Va. Code R. § 71-26-6 Organization and Management
6.1. All owners, employees, volunteers or associates of the clinic shall be subject to the provisions of the West Virginia Clearance for Access: Registry and Employment Screening Act, W. Va. Code §§16B-15-1, et seq., and W. Va. Code R. §§71-11-1, et seq.
6.2. The clinic may not be owned by, nor may it employ or associate with, any physician or prescriber:
6.2.1. Whose Drug Enforcement Administration number has ever been revoked;
6.2.2. Whose application for a license to prescribe, dispense or administer a controlled substance has been denied, restricted or denotes any disciplinary action by any jurisdiction; or
6.2.3. Who, in any jurisdiction of this state or any other state or territory of the United States, has received an ineligible employment fitness determination from the West Virginia Clearance for Access: Registry and Employment Screening division of the Office of Inspector General and has not received a variance.
6.3. Owner.
6.3.1. The owner of a pain management clinic is any person, partnership, association, or corporation named in the application for licensure of a pain management clinic. A pain management clinic may have more than one owner.
6.3.2. At least one owner of the pain management clinic shall be a physician actively licensed to practice medicine and surgery or osteopathic medicine and surgery in this state.
6.3.3. Each owner is responsible for the general establishment and licensure of the pain management clinic and is subject to all applicable federal and state laws, rules, and regulations.
6.3.4. The owner or owners and administrator shall meet at least annually to review the pain management clinic’s total operation and document the meeting by signed meeting minutes. The review shall include, at a minimum, policy review; review of utilization and quality of patient care, quality assessment, and performance improvement reports and actions; review of assets and funds; and any other reviews necessary to determine adequate care, treatment, health, safety, and welfare of patients.
6.4. Designated physician owner.
6.4.1. Each pain management clinic shall have a designated physician owner who shall practice at the clinic and who will be responsible for the operation of the clinic pursuant to the federal, state, and local laws and the requirements in this rule.
6.4.2. The designated physician owner shall:
6.4.2.a. Have a full, active, and unencumbered license to practice medicine and surgery or osteopathic medicine and surgery in this state;
6.4.2.b. Meet one of the following training requirements:
6.4.2.b.1. Complete a pain medicine fellowship that is accredited by the Accreditation Council for Graduate Medical Education (ACGME) or such other similar program as may be approved by the Director in consultation with the appropriate licensing board; or
6.4.2.b.2. Hold current board certification by the American Board of Pain Medicine (ABPM), the American Board of Interventional Pain Physicians, or the American Board of Anesthesiology (ABA); hold current subspecialty certification in pain management by the American Board of Medical Specialties; hold a current certificate of added qualification in pain management by the American Osteopathic Association Bureau of Osteopathic Specialists; hold Competency Certification in Controlled Substances Management; or hold current board certification from such other program as may be approved by the Director;
6.4.2.c. Practice a minimum of 32 hours per week at the licensed pain management clinic for which the physician has assumed responsibility;
6.4.2.d. Supervise, control, and direct the activities of each individual working or operating at the facility, including any employee, volunteer, or individual under contract who provides treatment of chronic pain at the clinic or is associated with the provision of that treatment;
6.4.2.e. Develop operation and clinical policies and procedures;
6.4.2.f. Supervise all medical services offered by the pain management clinic;
6.4.2.g. Ensure the pain management clinic is in compliance with all applicable federal, state, and local laws, rules, and regulations;
6.4.2.h. Approve the basic and continuing educational programs of all physicians and clinic staff employed by or volunteering at the pain management clinic;
6.4.2.i. Periodically conduct appraisals of the medical staff as defined by clinic policy;
6.4.2.j. Periodically examine credentials of candidates for medical staff membership;
6.4.2.k. Supervise all clinical quality assessment and performance improvement activities;
6.4.2.l. Be responsible for complying with all requirements related to the licensing and operation of the clinic; and
6.4.2.m. Hold a 25 percent ownership interest in the clinic. The designated physician owner shall not be a contracted individual.
6.4.3. Within 10 days after the withdrawal or termination of a designated physician owner, the remaining owners of the clinic shall notify the Director of the identity of another designated physician for that clinic. During the interim, not to exceed 60 days, another licensed physician shall be present during all hours of operation and shall assume the duties of the designated physician owner on a temporary basis until such time as a new designated physician owner is identified and begins work at the clinic. The interim physician may be another owner of the clinic or a physician employed by or associated with the clinic.
6.5. Administrator.
6.5.1. The administrator is responsible for the day-to-day non-clinical business operation of the pain management clinic.
6.5.2. The administrator shall be qualified by education and training as specified in a job description developed by the owners.
6.5.3. Duties of the administrator include:
6.5.3.a. Maintenance and security of the clinic;
6.5.3.b. Employment, credentialing, evaluation, scheduling, training, and management of staff;
6.5.3.c. Responsibility for the compliance process;
6.5.3.d. Protection of patient rights as outlined in section 9 of this rule;
6.5.3.e. Conformity of the clinic’s program with state and federal confidentiality requirements;
6.5.3.f. Security of medication storage and safe handling of medications; and
6.5.3.g. Management of the clinic budget.
W. Va. Code R. § 71-26-7 Clinic and Facility Environment and Operation
7.1. Each pain management clinic facility shall have:
7.1.1. Sufficient space and adequate equipment for the provision of all services specified in the pain management clinic’s description of treatment services;
7.1.2. Clean, safe, and well-maintained patient and staff areas;
7.1.3. A secure room with lockable equipment for all information contained in patient records;
7.1.4. Policies and procedures regarding the confidentiality of all information in patient records which specify the requirements for access to the secure room and to electronic records, including levels of access;
7.1.5. A double-locked area to prevent access to controlled substances by any unauthorized personnel;
7.1.6. Sanitary and secure dosing areas;
7.1.7. Sufficient restrooms for the estimated patient population with separate restrooms for observation of specimen production, if necessary;
7.1.8. Adequate parking areas for the expected flow of traffic; and
7.1.9. Procedures to ensure that the premises are kept free from rodent and insect infestation.
7.2. All pain management clinic facilities must meet all requirements of applicable federal, state, and local regulatory or oversight agencies, including the State Fire Commission.
W. Va. Code R. § 71-26-8 Clinic Staff; Training and Credentialing of Staff
8.1. All employees, volunteers, contracted individuals, and associates of a pain management clinic are subject to the restrictions, prohibitions, and requirements established in this rule.
8.2. Professional Medical Staff.
8.2.1. The pain management clinic may employ, contract with, and use physicians and other licensed health care professionals working within their scope of practice who have received sufficient training and experience in accordance with clinic policies and procedures developed by the designated physician owner.
8.2.2. All physicians and licensed health care professionals employed or contracted by the pain management clinic shall be actively licensed in West Virginia and shall have:
8.2.2.a. A minimum of one year of experience in chronic pain management; or
8.2.2.b. Active enrollment in a training program for obtaining competence in chronic pain management that is approved by the designated physician owner. The designated physician owner shall certify the individual’s satisfactory completion of the training.
8.2.3. During all hours of operation when the designated physician owner of the pain management clinic is not present, a physician, physician assistant, or advanced practice registered nurse with an active license in this state shall be on site.
8.2.4. The clinic must ensure that there is trained staff on duty at all times who are proficient in cardiopulmonary resuscitation and management of medication overdose.
8.2.5. A person may not dispense any medication, including a controlled substance, on the premises of a licensed pain management clinic unless he or she is a physician or pharmacist licensed in this state.
8.3. Unlicensed Clinic Staff and Volunteers.
8.3.1. A pain management clinic may employ or utilize unlicensed staff, contracted individuals, and volunteers to assist in the operation of the clinic.
8.3.2. The clinic shall develop policies and procedures that specify the job descriptions and responsibilities of unlicensed employees, contracted individuals, and volunteers. Documentation of the responsibilities, training, and other obligations of unlicensed employees, contracted individuals, or volunteers shall be included in the personnel file of the employees or volunteers.
8.3.3. All unlicensed staff, contracted individuals, and volunteers shall receive appropriate supervision by a physician, physician assistant, advanced practice registered nurse, registered nurse, or licensed practical nurse and shall be provided with assistance and directions as to their responsibilities.
8.4. Staff training and credentialing.
8.4.1. The pain management clinic shall ensure that all physician assistants, advanced practice registered nurses, contracted individuals, and all other licensed or certified professional care providers comply with the credentialing requirements of their respective professions, obtain and maintain current licenses, and complete all continuing education requirements of their respective licensing boards and this rule.
8.4.2. All clinic staff members, contracted individuals, and volunteers shall complete initial and continuing education and training that is specific to their job function and is consistent with the requirements of applicable federal and state laws, rules, regulations, and guidelines. Documentation of all completed education and training courses or programs shall be maintained in the personnel file of each staff member or volunteer.
8.4.3. The pain management clinic shall develop detailed job descriptions for each staff member, including contracted individuals, that clearly define the education, training, qualifications, and competencies needed to provide specific service: Provided, That additional job duties for a physician assistant beyond those delineated in W. Va. Code R. §11-1B-13.2. are submitted for the consideration and approval of the Board of Medicine.
8.4.4. Upon hire of any new clinical staff member or contracted individual, the pain management clinic shall provide orientation as to the person’s primary job responsibilities, including, but not limited to, confidentiality requirements, on the first day of employment. Documentation of the completed orientation shall be included in the personnel file of each staff member.
8.4.5. The pain management clinic shall maintain confidential individual personnel files for every staff member, including contracted individuals. Personnel files shall contain, at a minimum:
8.4.5.a. The application for employment, contract, or request to work as a volunteer;
8.4.5.b. Documentation of the date of employment;
8.4.5.c. Identifying information and emergency contacts;
8.4.5.d. Documentation of completion of orientation, trainings, and continuing education;
8.4.5.e. Documentation of all licenses, certifications, or other credentials;
8.4.5.f. Documentation relating to performance, supervision, disciplinary actions, and termination summaries;
8.4.5.g. Detailed job descriptions; and
8.4.5.h. Evidence that the employee, independent contractor, or volunteer has received an eligibility fitness determination or variance from the West Virginia Clearance for Access: Registry and Employment Screening division of the Office of Inspector General.
W. Va. Code R. § 71-26-9 Patient Rights
9.1. Each pain management clinic shall have policies and procedures that guarantee the following rights to patients:
9.1.1. The right to be informed, both verbally and in writing, of clinic fees, rules, and regulations and patient’s rights and responsibilities in advance of the clinic providing care. The rights and responsibilities shall be posted prominently and reviewed with the patient at the initial visit and at any time changes in the rights and responsibilities occur. The rights shall be explained to the patient in a manner in which the patient can understand, including the use of interpreters and personnel experienced in communication with vision and hearing-impaired individuals;
9.1.2. The right to receive treatment provided in a fair and impartial manner regardless of race, sex, age, sexual orientation, or religion;
9.1.3. The right to participate in the development and implementation of his or her plan of care and to make decisions regarding that care. The written plan of care shall be reviewed with the patient at least every 90 days by the patient’s physician and shall be maintained in the patient’s chart;
9.1.4. The right to be informed that prior to dispensing or prescribing a controlled substance, the treating physician must access the Controlled Substances Monitoring Program database maintained by the West Virginia Board of Pharmacy to ensure that the patient is not seeking controlled substances from multiple sources. The treating physician shall also review the database at each patient examination, or at least every 90 days during the course of ongoing treatment;
9.1.5. The right to be informed that the patient may be required to submit to drug testing and that the collection of specimens may be observed, if deemed necessary;
9.1.6. The right to treatment at a pain management clinic that provides an adequate number of competent, qualified, and experienced professional staff to implement and supervise the written plan of care;
9.1.7. The right to be informed of the extent of confidentiality, including the conditions under which information can be released without consent, the use of identifying information for the purposes of clinical evaluations, billing, and statutory requirements for reporting abuse; and
9.1.8. The right to care in a safe setting.
9.2. The clinic shall establish a patient grievance process which shall be displayed in the patient care area. A grievance may be verbal or written. The grievance process shall include:
9.2.1. Who to contact to file a grievance;
9.2.2. Time frames for review of the grievance;
9.2.3. Provision of a response to the grievant that contains the name of the clinic contact person, the steps taken on behalf of the patient to investigate the grievance, the results of the grievance process, and the date of completion of the investigation;
9.2.4. The right of a patient to initiate grievance procedures without fear of reprisal; and
9.2.5. The address and telephone number of the Office of Health Facility Licensure and Certification.
9.3. The clinic shall have policies and procedures which address safety and security issues for patients and staff, including training staff to handle physical or verbal threats, acts of violence, and inappropriate behavior or other escalating and potentially dangerous situations, with emphasis on when security guards or police need to be summoned. In regard to security personnel, the use of guns, handcuffs, and mace is prohibited.
W. Va. Code R. § 71-26-10 Provision and Coordination of Patient Care
10.1. Each pain management clinic shall develop and maintain current policies and procedures, patient protocols, treatment plans, and profiles for the treatment of patients seeking treatment for chronic pain.
10.2. Assessments.
10.2.1. All patients shall undergo an initial assessment in order to determine the patient’s condition, diagnosis, and treatment. The assessment shall be conducted by one or more physicians who specialize in the treatment of the area, system, or organ of the body perceived as the source of the pain.
10.2.2. The initial assessment shall include documentation of:
10.2.2.a. A physical examination, by a qualified medical professional working within their scope of practice;
10.2.2.b. The patient’s health history;
10.2.2.c. All current medications, prescription or otherwise;
10.2.2.d. The patient’s use of alcohol, tobacco, or other substances;
10.2.2.e. Determination of current dependence on controlled substances;
10.2.2.f. An inquiry to and report from the Controlled Substances Monitoring Program;
10.2.2.g. Laboratory tests;
10.2.2.h. A full toxicology screen;
10.2.2.i. An inquiry whether the patient is being treated at any other pain management clinic;
10.2.2.j. The diagnosis of all conditions, including a diagnosis of chronic pain, if applicable, including signs, symptoms, and causes;
10.2.2.k. A copy of the report by the referring physician and any medical records from other providers; and
10.2.2.l. The dates, amounts, and dosage forms of any drugs prescribed, dispensed, and administered.
10.2.3. Subsequent patient assessments shall include documentation of:
10.2.3.a. Follow-up physical examinations, by a qualified medical professional working within their scope of practice;
10.2.3.b. The patient’s response to treatment;
10.2.3.c. Any modification to the plan of treatment;
10.2.3.d. The dates on which any medications were prescribed, dispensed, or administered;
10.2.3.e. The amounts and dosage forms for any drugs prescribed, dispensed, or administered;
10.2.3.f. Laboratory tests, according to the pain management clinic’s policy, but at least every 60 days; and
10.2.3.g. Full toxicology screen, according to the pain management clinic’s policy, but at least every 90 days.
10.2.4. A physician, physician assistant, certified registered nurse anesthetist, or advance practice registered nurse shall perform a physical examination of a patient on the same day that the physician initially prescribes, dispenses, or administers a controlled substance to a patient. If the patient continues to be treated for chronic pain at the clinic, a physical examination shall be performed at least four times, or every 90 days, per year thereafter. All examinations shall be performed according to accepted and prevailing standards for medical care.
10.3. Plan of care.
10.3.1. The treating physician and other health care professionals, working within their scope of practice, directly involved in the care of the patient shall develop a written individualized plan of care for every patient.
10.3.2. The plan of care shall include, at a minimum:
10.3.2.a. Information required for the initial assessment;
10.3.2.b. Documentation of the patient’s diagnoses, the proposed medical treatment, medication dosages, and administration;
10.3.2.c. Documentation of the patient’s current physical condition and whether the patient requires other health care;
10.3.2.d. Laboratory test results;
10.3.2.e. Follow-up on any identified medical, physical, or behavioral health issues;
10.3.2.f. Documentation of any education regarding the management of chronic pain, suggested pain management programs or counseling sessions and resolution of other issues unique to the needs of the patient;
10.3.2.g. Such other information as recommended by the guidelines and treatment model utilized for the patient;
10.3.2.h. Specific goals and outcomes to improve or maintain the optimal health of the patient which are based on the assessment of the patient; and
10.3.2.i. A description of services and their frequency to be provided for the patient and primarily directed to achieve the expected goals and outcomes.
10.3.3. Delivery of patient care and treatment interventions shall be based on the needs identified in the plan of care.
10.3.4. The plan of care shall be reviewed by the patient and health care professionals directly involved in the care of the patient at least every 90 days and documented in the patient record. Reviews shall address each of the objectives identified on the initial plan of care; document all treatment, medications, and other services rendered to the patient; and document the patient’s progress. A revised plan of care may be implemented with each review. Paper and electronic plans of care, including all reviews and updates, must be acknowledged by the patient.
10.3.5. When a physician diagnoses an individual with chronic pain, the physician may treat the pain by managing it with medications in amounts or combinations that may not be appropriate when treating other medical conditions.
10.4. Medication Security and Administration.
10.4.1. A person may not dispense any medication, including a controlled substance, on the premises of a licensed pain management clinic unless he or she is a physician or pharmacist licensed in this state. A pain management clinic physician or pharmacist shall not dispense to any patient more than a 72-hour supply of any controlled substance.
10.4.2. The pain management clinic shall comply with policies and procedures developed by the West Virginia Board of Pharmacy that permit physicians access to the Controlled Substances Monitoring Program database maintained by the West Virginia Board of Pharmacy. The treating physician shall access the Controlled Substances Monitoring Program database in order to ensure that the patient is not seeking prescription medication from multiple sources. The results obtained from the database shall be maintained with the patient records. Treating physicians shall access the database:
10.4.2.a. At the patient’s intake;
10.4.2.b. Before administering, dispensing, or prescribing any controlled substance;
10.4.2.c. At each 90-day examination;
10.4.2.d. After any positive drug test; and
10.4.2.e. Whenever the treating physician, in his or her discretion, believes a review of the database is warranted.
10.4.3. The pain management clinic shall have policies and procedures that comply with all relevant federal and state laws, rules, and regulations regarding the storage, management, administration, and dispensing of medications kept at the facility. In addition, the policies and procedures shall include measures that:
10.4.3.a. Ensure responsible handling and appropriately locked storage of all medications kept, received, stored, administered, or dispensed at the facility;
10.4.3.b. Ensure accurate documentation of all medications kept, received, stored, administered, and dispensed at the facility;
10.4.3.c. Ensure that only authorized personnel may access the storage areas where any medications are kept; and
10.4.3.d. Ensure any outdated drugs and drug containers with worn, illegible, or missing labels are removed from the pain management clinic in accordance with the requirements for safe medication disposal from the Board of Pharmacy, as well as the pain management clinic policy.
10.4.4. The pain management clinic shall maintain current policies and procedures which ensure that all medications are administered or dispensed in accordance with approved product labeling. The procedures must ensure that any significant deviations from the approved labeling, including deviations with regard to dose frequency, or the conditions of use described in the approved labeling, are specifically documented in the patient’s record.
10.4.5. Each pain management clinic shall calibrate medication dispensing instruments consistent with the manufacturer’s recommendations to ensure accurate patient dosing and substance tracking.
10.4.6. Each pain management clinic is responsible for proper documentation of medications kept, received, stored, administered, or dispensed. Documentation of medication administered or dispensed requires, at a minimum, the following:
10.4.6.a. The signature or initials of the qualified person administering or dispensing medication;
10.4.6.b. The date and time of dispensing;
10.4.6.c. The exact number of milligrams of the substance administered or dispensed;
10.4.6.d. The daily totals of the substance administered or dispensed;
10.4.6.e. Each dosage administered, dispensed, prepared, or received shall be recorded and accounted for by written, signed notation in a manner that creates a perpetual and accurate inventory of all medications in stock at all times;
10.4.6.f. Each medication order and dosage change shall be written on an acceptable order sheet and signed and dated by only the treating physician. If the initials are used, the full signature of the qualified person administering or dispensing shall appear at the end of each page of the medication sheet; and
10.4.6.g. At the time any medication is administered or dispensed, each dose shall be recorded on an administration sheet; in the medication dose history included in the patient’s plan of care and patient chart; and in the inventory control program used by the facility to monitor and ensure an accurate inventory of all medication on the premises.
10.4.7. The pain management clinic shall establish policies and procedures for monitoring medications to prevent diversion. The policies and procedures may include random call backs of individuals who are prescribed controlled substances on an ongoing basis, required clinic appointments, random toxicology screens, and random medication counts.
10.4.8. Every pain management clinic physician authorized to prescribe controlled substances is responsible for maintaining the control and security of his or her prescription blanks and any other method used for prescribing controlled substance pain medication.
10.4.8.a. Each physician shall comply with all state and federal requirements for tamper-resistant prescription paper.
10.4.8.b. In addition to any other requirements imposed by statute or rule, each physician shall notify the Director in writing within 24 hours following any theft or loss of a prescription blank or a breach of any other method for prescribing pain medication.
10.4.9. The pain management clinic shall establish policies and procedures regarding safe keeping, monitoring, destruction, and accounting for any medications the patient brings into the clinic.
10.4.10. Every pain management clinic must develop procedures for the destruction of medications in accordance with the Board of Pharmacy requirements and to include at least two employees, one of which must be a licensed medical professional.
W. Va. Code R. § 71-26-11 Records
11.1. The pain management clinic shall maintain patient records and business records according to clinic policy. Clinic policy shall be in compliance with state and federal law, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
11.2. The pain management clinic shall establish policies and procedures specifying who may use the records, under what conditions the records may be removed from the clinic and under what conditions the information from the records may be released.
11.3. The pain management clinic shall establish procedures to ensure security of all records, including electronic records.
11.4. The pain management clinic shall establish and maintain a recordkeeping system that is adequate to document and monitor patient care. The system shall comply with all federal and state reporting requirements relevant to prescription drugs approved for use in treatment of chronic pain management.
11.5. Patient records shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment, and document the course and results of treatment accurately.
11.6. Patient records shall be current and easily accessible from admission through discharge.
11.7. Patient records shall include, at a minimum:
11.7.1. Patient identification and demographic data;
11.7.2. Properly executed informed consent forms for procedures and treatments;
11.7.3. Copy of signed patient rights;
11.7.4. A complete patient history and physical examination, including any history of drug abuse or dependence;
11.7.5. Patient assessments and plans of care;
11.7.6. Progress notes and practitioners’ orders;
11.7.7. Diagnostic, therapeutic, and laboratory results, including drug testing results;
11.7.8. Reports of evaluations, consultations, and hospitalizations;
11.7.9. Treatment objectives, including discussion of risks and benefits;
11.7.10. Records of drugs prescribed, dispensed, or administered, including the date, type, and dosage;
11.7.11. Treatments;
11.7.12. Receipt and assessment of drug database or prescription monitoring program reports;
11.7.13. Copies of records, reports, or other documentation obtained from other health care practitioners at the request of the physician used for determining appropriate treatment of the patient. Records provided by the patient shall be designated as such; and
11.7.14. A record of all cash transactions.
11.8. All patient records shall be maintained for a minimum of five years from the time that the last documented treatment is provided. In the event a patient is a juvenile, the records shall be kept for a minimum of five years from the time the patient reaches the age of 18 years.
11.9. All patient records shall be kept confidential in accordance with all applicable federal and state requirements.
11.10. Each entry in the medical record shall be completed within 24 hours of the patient contact and shall be dated and signed by the medical staff person involved.
11.11. Information in patient medical records shall be entered only by physicians and other licensed health professionals. Entries shall be legible and organized in an effective manner, allowing materials to be easily retrieved.
W. Va. Code R. § 71-26-12 Laboratory Services
12.1. Each pain management clinic shall have the capability of obtaining medication blood levels and urine samples when clinically indicated. Collection and testing shall be done in a manner that assures a method of confirmation for positive results and documents the chain of custody of the collection.
12.2. All lab services provided to patients are performed in a facility certified in accordance with 42 CFR § 493 and the 1988 Clinical Laboratory Improvement Amendments (CLIA).
W. Va. Code R. § 71-26-13 Quality Assurance and Performance Improvement
13.1. The designated physician owner, medical staff, and clinic administration are responsible for and shall review at least annually the development, implementation, maintenance, and effective evaluation of quality assessments for performance improvement. This process systematically collects, measures, analyzes, and tracks objective indicators of patient care and clinic operations. This evaluation plan should reflect the complexity of the pain management clinic’s organization and services.
13.2. The pain management clinic shall maintain current quality assessment and performance improvement policies that objectively and systematically monitor and evaluate the quality and appropriateness of patient care, evaluate the methods to improve patient care, identify and correct deficiencies within the clinic, and provide for opportunities to improve the clinic’s performance and quality of care.
13.3. The clinic shall make available to the Director the results of peer review and quality assessment and performance improvement information upon request.
13.4. Quality assessment and performance improvement policies and areas of measurement shall include, but not be limited to:
13.4.1. Staff, administrative, and practitioner performance;
13.4.2. Grievance findings;
13.4.3. Evaluation of diagnostic and therapeutic services provided;
13.4.4. Medication errors, drug diversion, and other incidents or occurrences;
13.4.5. Drug therapy and adverse drug reactions;
13.4.6. Evaluation of all services provided to patients by staff accountable to the clinic through employment or contract;
13.4.7. Review and verification of staff credentials, training, periodic education, and licensure;
13.4.8. Review of clinic policies and procedures;
13.4.9. Review of patient satisfaction of services;
13.4.10. Infection control issues in regard to universal infection control guidelines as set forth by the Centers for Disease Control; and
13.4.11. Review of patient outcomes and treatment outcomes.
W. Va. Code R. § 71-26-14 Infection Control
14.1. The pain management clinic shall maintain an effective infection control program that protects the patients, their families, and clinic personnel by preventing and controlling infections and communicable diseases.
14.2. The program shall include the implementation of a nationally recognized system of infection control guidelines.
14.3. The pain management clinic shall have an active surveillance and education program for the prevention, early detection, control, and investigation of infections and communicable diseases.
14.4. The pain management clinic shall designate a person or persons, with appropriate education and training, as infection control officers to develop and implement policies and governing control of infections and communicable diseases for patients and personnel.
W. Va. Code R. § 71-26-15 Incident Reporting and Adverse Events
15.1. The pain management clinic shall develop policies and procedures for comprehensively documenting, investigating, taking corrective action, and tracking instances of adverse events or incidents.
15.2. Adverse events or incidents may include, but not be limited to:
15.2.1. Medication errors;
15.2.2. Patient suicide attempts;
15.2.3. Patients deaths;
15.2.4. Harm to family members or others from ingesting a patient’s medication;
15.2.5. Selling drugs on the premises;
15.2.6. Medication diversion;
15.2.7. Harassment or abuse of patients by staff;
15.2.8. Threats and intimidation of staff by patients; and,
15.2.9. Violence.
15.3. Adverse events or incidents shall be reviewed on a quarterly basis by the designated physician owner and administrator, who shall make recommendations to the owners and quality assessment and performance improvement program regarding improvements in the process to prevent further incidents.
15.4. Upon the occurrence of an adverse event or incident, the clinic shall:
15.4.1. Fully document the event or incident and report the matter to the Office of Health Facility Licensure and Certification on the prescribed form and to any other applicable state agencies within 24 hours according to procedures established by the Director;
15.4.2. Immediately investigate and review the situation surrounding the event or incident;
15.4.3. Take corrective action within 10 days, unless an extension is requested and granted;
15.4.4. Conduct ongoing monitoring of any corrective action that takes place until effectiveness of the action is established.
15.5. The designated physician owner or administrator of the pain management clinic shall report any death involving drug overdose or drug-related complications to the Director within 48 hours of any person at the clinic receiving notification of the mortality.
W. Va. Code R. § 71-26-16 License Revocations, Suspensions, and Denials
16.1. Grounds for Suspension, Revocation, or Denial.
16.1.1. The Director, in consultation with the Inspector General, may revoke, suspend, or deny a license issued pursuant to this rule if any provisions of federal or state law or this rule are violated. The Director, in consultation with the Inspector General, may revoke a license and prohibit all physicians associated with that pain management clinic from practicing at the clinic location based upon the findings and results of an annual or periodic inspection and evaluation. The period of suspension for the license of a pain management clinic shall be prescribed by the Director, in consultation with the Inspector General, but may not exceed one year.
16.1.2. The Director, in consultation with the Inspector General, may revoke, or suspend, or deny a pain management clinic license for one of more of the following reasons:
16.1.2.a. The Director makes a determination that fraud or other illegal action has been committed by any owner of the pain management clinic;
16.1.2.b. The pain management clinic has violated federal, state, or local law relating to licensure, building, health, fire protection, safety, sanitation, or zoning;
16.1.2.c. The pain management clinic engages in practices that jeopardize the health, safety, welfare, or clinical treatment of a patient;
16.1.2.d. The pain management clinic has failed or refused to submit reports or make records available as requested by the Director;
16.1.2.e. A pain management clinic has refused to provide access to its location or records as requested by the Director;
16.1.2.f. A pain management clinic’s designated physician owner has knowingly and intentionally misrepresented actions taken to correct a violation;
16.1.2.g. An owner or designated physician owner of a pain management clinic concurrently operates an unlicensed pain management clinic;
16.1.2.h. A physician or any owner knowingly operates, owns, or manages an unlicensed pain management clinic that is required to be licensed;
16.1.2.i. The owners of a licensed pain management clinic fail to apply for a new license for the clinic upon a change of ownership and operate the clinic under the new ownership;
16.1.2.j. A physician or any owner acquires or attempts to acquire a license for a pain management clinic through misrepresentation or fraud or procures or attempts to procure a license for a pain management clinic for any other person by making or causing to be made any false representation; or
16.1.2.k. The pain management clinic fails to have a licensed designated physician owner practicing at the location as required by this rule.
16.2. Effect of Suspension, Revocation, or Denial.
16.2.1. If a license for a pain management clinic has been revoked, the Director, in consultation with the Inspector General, may stay the effective date of the revocation if the designated physician owner and administrator of the clinic can show that the stay is necessary to ensure appropriate referral and placement of patients.
16.2.2. If the license of a pain management clinic is revoked, suspended, or denied no person, firm, association, or corporation may operate the facility as a pain management clinic as of the effective date of the suspension, revocation, or denial. The owners of the pain management clinic are responsible for removing all signs and symbols identifying the premises as a pain management clinic within 30 days from the date of the revocation, suspension, or denial.
16.2.3. If a license for a pain management clinic has been revoked, suspended, or denied the clinic must supply, at a minimum, a copy of the following information to the Director:
16.2.3.a. A closure notice to be mailed to all active patients meeting the guidelines set forth by their respective board;
16.2.3.b. The date the closure letter will be mailed to all active patients;
16.2.3.c. The number of active patients to receive the closure notice;
16.2.3.d. A Class II legal advertisement that complies with the requirements of W. Va. Code §§59-3-1, et seq., regarding the clinic closure, including the dates the notice will appear and the name of the newspaper; and
16.2.3.e. Contact information the clinic has supplied to patients who may need help locating a new treating physician or clinic.
16.2.4. Upon the effective date of the suspension, revocation, or denial the designated physician owner of the pain management clinic shall advise the Director and the Board of Pharmacy of the disposition of all drugs located on the premises. The disposition is subject to the supervision and approval of the Director and the Drug Enforcement Agency. Drugs that are purchased or held by a pain management clinic that is not licensed may be deemed adulterated.
16.2.5. If the license of a pain management clinic license is revoked or denied, a new application for a license shall be considered by the Director if, when and after the conditions upon which revocation or denial was based have been corrected and evidence of this fact has been furnished. A new license may then be granted after proper inspection has been made and the Director makes a written finding that all provisions of this article and rules promulgated pursuant to this article have been satisfied.
W. Va. Code R. § 71-26-17 Penalties and Equitable Relief
17.1. Grounds for Penalties and Injunctions.
17.1.1. Any person, partnership, association, or corporation which establishes, conducts, manages, or operates a pain management clinic without first obtaining a license therefore or which violates any provisions of law or rule shall be assessed a civil money penalty by the Director, in consultation with the Inspector General, in accordance with this rule.
17.1.2. Each day of continuing violation after notification of the infraction shall be considered a separate violation.
17.1.3. If the clinic’s designated physician owner knowingly and intentionally misrepresents actions taken to correct a violation, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $10,000 and revoke or deny the pain management clinic’s license.
17.1.4. If an owner or designated physician owner of pain management clinic concurrently operates an unlicensed pain management clinic, the Director, in consultation with the Inspector General, may impose a civil money penalty upon the owner or physician, or both, not to exceed $5,000 per day.
17.1.5. If the owner of a pain management clinic that requires a license under this article fails to apply for a new license for the clinic upon a change of ownership and operates the clinic under the new ownership, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $5,000.
17.1.6. If a physician knowingly operates, owns, or manages an unlicensed pain management clinic that is required to be licensed pursuant to this article; knowingly prescribes or dispenses, or causes to be prescribed or dispensed, controlled substances in an unlicensed pain management clinic that is required to be licensed; or obtains a license to operate a pain management clinic for any other person by making or causing to be made any false representation, the Director, in consultation with the Inspector General, may assess a civil money penalty of not more than $20,000. The penalty may be in addition to or in lieu of any other action that may be taken by the Director, in consultation with the Inspector General, or any other board, court, or entity.
17.2. Notwithstanding the existence or pursuit of any other remedy, the Inspector General may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, and/or corporation to restrain or prevent the establishment, conduct, management, or operation of any pain management clinic or violation of any provisions of this article or any rule lawfully promulgated thereunder without first obtaining a license therefore in the manner hereinbefore provided.
17.2.1. The Inspector General may also seek injunctive relief if the establishment, conduct, or management or operation of any pain clinic, whether licensed or not, jeopardizes the health, safety, and/or welfare of any or all of its patients.
17.2.2. In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the Director, in consultation with the Inspector General, shall consider the following factors:
17.2.2.a. The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient has resulted, or could have resulted, from the pain management clinic’s actions or the actions of the designated physician owner or any treating physician employed by or associated with the clinic, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated;
17.2.2.b. What actions, if any, the designated physician owner or treating physician took to correct the violations;
17.2.2.c. Whether there were any previous violations at the pain management clinic; and
17.2.2.d. The financial benefits that the pain management clinic derived from committing or continuing to commit the violation.
17.3. Upon finding that a physician has violated the provisions of this article or rules adopted pursuant to this article, the Director shall provide notice of the violation to the applicable licensing board.
W. Va. Code R. § 71-26-18 Administrative Due Process
18.1. Before any pain management clinic license is denied, suspended, or revoked, written notice shall be given to the owner or owners of the clinic, stating the grounds of the complaint and the date, time, and place set for the hearing on the complaint, which date shall not be less than 30 days from the time the notice is given.
18.1.1. The notice shall be sent by certified mail to the owner or owners at the address where the pain management clinic concerned is located.
18.1.2. Nothing prohibits the parties from requesting an administrative hearing or in an informal meeting to address and resolve the findings of the licensing review prior to the hearing and nothing prohibits the parties from continuing the hearing upon good cause shown as determined by the Board of Review.
18.1.3. The pain management clinic and its owner or owners shall be entitled to be represented by legal counsel at the informal meeting or at the hearing at their own expense.
18.1.4. All of the pertinent provisions of W. Va. Code §§29A-5-1, et seq., and W. Va. Code R. §§69-1-1, et seq., shall apply to and govern any hearing authorized by this rule.
18.1.5. If an owner fails to request a hearing within the time frame specified, he or she shall be subject to the full penalty imposed.
18.1.6. The filing of a request for a hearing does not stay or supersede enforcement of the final decision or order of the Director. The Director, in consultation with the Inspector General, may, upon good cause shown, stay such enforcement.
W. Va. Code R. § 71-26-19 Administrative Appeals and Judicial Review
19.1. Any owner of a pain management clinic who disagrees with the decision of the Board of Review as a result of the hearing may, within 30 days after receiving notice of the decision, appeal the decision to the West Virginia Intermediate Court of Appeals.
19.1.1. The filing of a petition for appeal does not stay or supersede enforcement of the final decision or order of the Board of Review. An appellant or Inspector General may apply to the court for a stay of or to supersede the final decision or order.
19.1.2. The West Virginia Intermediate Court of Appeals may affirm, modify, or reverse the decision of the Board of Review. The owner or owners or the Inspector General may appeal the court’s decision to the West Virginia Supreme Court of Appeals.
Series 27 Medication-Assisted Treatment - Opioid Treatment Programs
W. Va. Code R. § 71-27-1 General
1.1. Scope. -- This legislative rule establishes standards and procedures for the licensure of opioid treatment programs (OTP) - medication-assisted treatment (MAT) programs.
1.2. Authority. -- W. Va. Code §16B-13-13.
1.3. Filing Date. – May 29, 2025.
1.4. Effective Date. – May 29, 2025.
1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2027.
1.6. Purpose. -- The purpose of this rule is to ensure that all West Virginia OTP-MAT programs conform to a common set of minimum standards and procedures to ensure the care, treatment, health, safety, and welfare of patients therein.
1.7. Enforcement. -- This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule, except where otherwise stated.
W. Va. Code R. § 71-27-2 Definitions
2.1. Definitions incorporated by reference. -- Those terms defined in W. Va. Code §§16B-13-1, et seq. are incorporated herein by reference.
2.2. Accreditation Body -- A body approved by the Substance Abuse and Mental Health Services Administration (SAMHSA) under 42 C.F.R. § 8.3 to accredit opioid treatment programs that use medication-assisted treatment medications.
2.3. Administrative Detoxification or Administrative Withdrawal -- The detoxification from the approved medication-assisted treatment medication for the safety and well-being of the patient, other patients, and staff of the MAT program.
2.4. Admissions Committee -- A designated group of individuals within the opioid treatment program consisting of the program administrator, or his or her designee; the medical director, or his or her designee; and a senior counselor, who is responsible for developing, implementing, administering, and reviewing program admissions policies and procedures, granting any exceptions to program admissions policies and procedures, and tracking the outcomes of patient admissions and exceptions.
2.5. Advanced Practice Registered Nurse -- A registered nurse who has acquired advanced clinical knowledge and skills preparing him or her to provide direct and indirect care to patients, completed a board-approved graduate-level education program, passed a board-approved national certification examination, and has met all the requirements set forth by the West Virginia Board of Examiners for Professional Registered Nurses.
2.6. Adverse Event or Incident -- An event involving an immediate threat to the care or safety of an individual, either staff, patient, or visitor; the possibility of serious operational or personnel problems within the MAT program facility; or the potential to undermine public confidence in the MAT program.
2.7. Advisory Council -- A designated group of individuals representing staff, patients, and the community who are appointed to serve in a non-managerial advisory capacity to the governing body of an opioid treatment program.
2.8. Approved Authorities -- Programs or authorities that publish practice or treatment guidelines, standards, or protocols that the Director has approved for use by MAT programs. Approved authorities include, but are not limited to, the American Society of Addiction Medicine (ASAM); the Center for Substance Abuse Treatment (CSAT); the National Institute on Drug Abuse (NIDA); the American Association for the Treatment of Opioid Dependence (AATOD); the Federation of State Medical Boards (FSMB); and any other program or authority approved by the Director.
2.9. Case Management -- The process of coordinating and monitoring the services provided to a patient both within the program and in conjunction with other providers.
2.10. Certification -- The process by which SAMHSA determines that an opioid treatment program is qualified to provide medication-assisted treatment under federal opioid treatment standards.
2.11. Clinical Staff -- The individuals employed by or associated with a MAT program who provide treatment, care, or rehabilitation to program patients or patients’ families.
2.12. Co-Occurring Disorders -- The combination of current or former substance use disorders and any other mental disorders recognized in the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
2.13. Counseling Session -- A face-to-face interaction, which could include telehealth, in a private location between a patient and a primary counselor for a period of no less than 30 continuous minutes designated to address patient substance use disorder issues or coping strategies and individualized treatment plan of care.
2.14. Counselor -- A person who, by education, training, and experience, is qualified to provide psychosocial education, treatment and guidance to patients enrolled with a MAT program and, if desired, to the families of such patients, in order to accomplish behavioral health wellness, education, and other life goals.
2.15. Crisis -- A deteriorating or unstable situation often developing suddenly or rapidly that produces acute, heightened, emotional, mental, physical, medical, or behavioral distress; or any situation or circumstances in which the individual perceives or experiences a sudden loss of his ability to use effective problem-solving and coping skills.
2.16. Critical Incident -- A life, safety, or health threat involving the staff or patients participating in a program, including, but not limited to, death or physical or sexual assault.
2.17. Detoxification or Medically Supervised Withdrawal Treatment -- The dispensing of a medication-assisted treatment medication to a patient in decreasing doses over time, under the supervision of a program physician, to alleviate adverse physical or psychosocial effects incident to withdrawal from the continuous or substantial use of an opioid drug.
2.18. Discharge Plan -- The written plan that establishes the criteria for a patient’s discharge from a service and identifies and coordinates delivery of any services needed after discharge.
2.19. Dispense -- The preparation and delivery of a medication-assisted treatment medication in an appropriately labeled and suitable container to a patient by a MAT program, but does not include the preparation and delivery of medications by a pharmacy licensed pursuant to the provisions of W. Va. Code §§30-5-1, et seq.
2.20. Diversion -- An activity involving the legitimate acquisition of pharmaceutical agents illegally diverted to entities not intended as the recipients by the initial supplier.
2.21. Diversion Control Plan -- A required plan developed and implemented by the MAT program, which may include, but is not limited to, the assigning of responsibilities to medical and administrative staff and other specific measures to reduce the possibility of diversion of controlled substances from legitimate treatment to illicit use.
2.22. Federal Opioid Treatment Standards -- The standards established by the United States Department of Health and Human Services, 42 C.F.R. § 8.12, that are used to determine whether an opioid treatment program is qualified to engage in medication-assisted treatment and to determine the quantities of medication-assisted treatment medications which may be provided for unsupervised use.
2.23. For-Cause Inspection -- An inspection by any federal or state agency or accreditation body of a MAT program that may be operating in violation of 42 C.F.R. § 8 or state medication-assisted treatment rules, may be providing substandard treatment, or may be serving as a possible source of diverted medications.
2.24. Grievance -- A written or oral complaint filed by a patient with a program administrator, medical director, or state agency alleging inadequate treatment by the MAT program.
2.25. Individualized Treatment Plan of Care or Treatment Plan -- A plan or strategy of treatment and care developed by the patient’s physician, counselors,, and other health care professionals in conjunction with the patient that outlines attainable short-term treatment goals that are mutually acceptable to the patient and the MAT program and which specifies the services to be provided and the frequency and schedule for their provision.
2.26. Induction -- Initial treatment of a patient with medication-assisted treatment medication in order to suppress signs or symptoms of withdrawal or substance cravings; and generally includes a gradual increase in medication-assisted treatment medication therapy until the symptoms are regularly and reliably suppressed or controlled.
2.27. Initial Assessment -- An assessment conducted prior to or at admission and initial screening of a proposed patient that focuses on the individual’s eligibility or need for admission and treatment; and provides indicators for initial dosage level and forms the basis for the individualized treatment plan of care.
2.28. Inspection or Survey -- Any examination by the Director or his or her designee of a MAT program including, but not limited to, the premises, staff, patients, and documents pertinent to initial and continued licensing, so that the Director or his or her designee may determine whether a program is operating in compliance with licensing requirements or has violated any licensing requirements. This includes any survey, monitoring visit, complaint investigation or other inquiry conducted for the purposes of making a compliance determination with respect to licensing requirements.
2.29. Interdisciplinary Team -- A representative of the clinical staff of the opioid treatment program, and the patient’s primary substance abuse counselor, working in conjunction with the patient and family members, if desired by the patient, to develop, approve, and coordinate the individualized treatment plan of care for the patient.
2.30. Long-Term Detoxification Treatment -- Detoxification or medically supervised withdrawal treatment for a period of more than 30 days.
2.31. Maintenance Dose -- The level of medication-assisted treatment medication considered medically necessary to consistently suppress signs or symptoms of substance use disorders and substance cravings for individuals with a substance use disorder; and is generally administered at the end of the induction period and is individualized for each patient and may gradually change over time.
2.32. Medical and Rehabilitative Services -- Treatment and recovery services such as medical assessments and evaluations, counseling and rehabilitative and other special programs intended to help patients in MAT programs become and remain productive members of society.
2.33. Medical or Patient Record -- Medical histories, records, reports, summaries, diagnoses, prognoses, records of treatment, and medication ordered and given, entries, x-rays, radiology interpretations, and other written electronic, or graphic data prepared, kept, made, or maintained in a facility that pertains to services rendered to patients.
2.34. Medical Withdrawal -- The medically managed, gradual, voluntary, and therapeutic withdrawal of a patient from medication-assisted treatment, agreed upon by the patient and appropriate staff.
2.35. Medication Administration -- The direct application of medications by injection, inhalation, ingestion, or any other means to a patient receiving services by persons legally permitted to administer medication-assisted treatment medications or the individual at the direction and in the presence of persons legally permitted to administer medication-assisted treatment medications.
2.36. Medication Error -- An error in administering a medication to an individual and includes when any of the following occur: the wrong medication is given to an individual; the wrong individual is given the medication; the wrong dosage is given to an individual; medication is given to an individual at the wrong time or not at all; or the wrong method is used to administer the medication.
2.37. Mental Health Professional -- A person licensed under Chapter 30 of the West Virginia Code as a social worker, psychologist, or professional counselor.
2.38. Misuse or Non-Medical Use -- All uses of a prescription medication or substance other than those that are directed by a physician and used by an intended patient within the law and the requirements of good medical practice.
2.39. Opioid Antagonist -- A drug that blocks opioids by attaching to the opioid receptors without activating them thereby causing no opioid effect and blocking full agonist opioids.
2.40. Opioid Drug -- Any substance or drug having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug or substance having such addiction-forming or addiction-sustaining liability including, but not limited to, heroin, morphine, codeine, oxycodone, hydrocodone, fentanyl, oxymorphone, hydromorphone, methadone, buprenorphine, and any natural, semi-synthetic, or synthetic drug that acts primarily through the opioid receptor in the brain.
2.41. Opioid Treatment Services -- Treatment and services provided by a MAT program that uses medication-assisted treatment medications as a part of its treatment modality. Opioid treatment services may be provided through outpatient, residential, or hospital settings and may include medical maintenance, medically supervised withdrawal and detoxification, various levels of medical, psychosocial, and other types of care, detoxification treatment, and maintenance treatment.
2.42. Peer Recovery Support Services -- Non-clinical recovery support services which are recipient directed and delivered by peers who have life experience with recovery.
2.43. Peer Review Committee -- A group of individuals designated by each opioid treatment program that is responsible for ensuring that the program follow approved national guidelines for opioid treatment facilities and programs, and shall include at least one physician licensed in the state of West Virginia.
2.44. Pharmacotherapy -- The treatment of disease or medical condition through the administration of drugs.
2.45. Physical Dependence -- A state of biologic adaption that is evidenced by a class-specific withdrawal syndrome when the substance is abruptly discontinued or the dose rapidly reduced, or by the administration of an antagonist.
2.46. Physician Assistant -- A person who meets the qualifications set forth in W. Va. Code §§30-3E-1, et seq. and is licensed pursuant to that article to practice medicine under the supervision of a physician or podiatrist licensed under the West Virginia Board of Medicine or the West Virginia Board of Osteopathic Medicine.
2.47. Physician Extender -- A medical staff person other than a program physician, functioning within his or her scope of practice to provide medical services to patients admitted to MAT programs. Physician extenders approved for employment at a MAT program include advanced practice registered nurses and physician assistants. Registered nurses and licensed practical nurses are not authorized to act as physician extenders in a MAT program, although they may work within the program in other capacities.
2.48. Plan of Correction -- A written description of the actions the MAT program intends to take to correct and prevent the reoccurrence of violations of a statute, rule, regulation or policy identified by the designated state oversight agency during an investigation or survey.
2.49. Plan of Education -- An approved continuing education plan that results in a physician, counselor or physician extender attaining professional competence in the field of substance use disorder treatment.
2.50. Positive Drug Screen -- A test that results in the presence of any drug or substance listed in subsection 34.2.5. of this rule or any other drug or substance prohibited by the MAT program. The presence of medication which is part of the patient’s individualized treatment plan of care shall not be considered a positive test. Any refusal to participate in a random drug test shall be considered a positive drug test.
2.51. Primary Counselor -- The individual designated by the MAT program to serve as a consultant and advisor to a patient on a regular basis. The primary counselor may be an addiction counselor and shall be included as a member of the patient’s interdisciplinary team for opioid treatment programs.
2.52. Program Physician -- Any physician licensed in this state pursuant to Chapter 30 of the West Virginia Code, designated and approved by the medical director to prescribe and monitor medication-assisted treatment for patients admitted to a MAT program. The medical director may serve as a program physician.
2.53. Random Drug Testing -- Approved medical screening and testing of patients for drugs, alcohol or other substances that shall be conducted so each patient of a MAT program has a statistically equal chance of being selected for testing at random, unscheduled times.
2.54. Recovery -- A process of change through which an individual improves his or her health and wellness, lives a self-directed life and strives to achieve his or her full potential.
2.55. Relapse Prevention Plan -- A plan of action developed by a patient and his or her primary counselor to help the patient anticipate and prepare for situations or environmental stimuli that were previously associated with substance abuse or addiction in order to avoid a return to use of opioids or other inappropriate or addictive substances.
2.56. Take-Home Medication -- Any medication that is approved under federal standards to be dispensed to a patient for unsupervised use based upon the patient’s demonstrated compliance with the individualized treatment plan of care. Each dose of take-home medication must be recommended by the primary counselor and be approved by the medical director or program physician. Take-home medication may not exceed the dosages permitted under federal law or recommended by approved national guidelines.
2.57. Titration -- The gradual increasing or decreasing of doses of a medication-assisted treatment medication to the minimal level clinically required for maintenance.
W. Va. Code R. § 71-27-3 State Opioid Treatment Authority
3.1. The Inspector General has designated the Bureau of Behavioral Health as the state opioid treatment authority.
W. Va. Code R. § 71-27-4 State Oversight Authority; Powers and Duties
4.1. The Inspector General has designated the Office of Health Facility Licensure and Certification (OHFLAC) within the Office of Inspector General to act as the state oversight agency, as that agency is defined in this rule. OHFLAC shall provide regulatory oversight, licensing and inspection of MAT programs.
4.2. The powers and duties of the state oversight agency include, but are not limited to, the following:
4.2.1. Develop and implement rules and standards regarding the licensure and oversight of MAT programs;
4.2.2. Accept applications and fees for licensure of MAT programs and conduct all necessary reviews, inspections or investigations in order to determine whether a license should be issued;
4.2.3. Issue initial, amended and renewed licenses to a MAT program upon a determination that the program is qualified;
4.2.4. Perform both scheduled and unscheduled site visits to MAT programs when necessary and appropriate;
4.2.5. Monitor the activities of all MAT programs to ensure compliance with all state and federal requirements;
4.2.6. Receive and act upon complaints;
4.2.7. Inspect allegations of rule or regulation violations, unauthorized activities or other conduct that may affect the health, safety or well-being of patients or employees of a MAT program;
4.2.8. Assist a MAT program in developing a plan of correction in order to correct any noted violations or deficiencies;
4.2.9. Deny, revoke or suspend the license of a MAT program in accordance with the applicable administrative proceedings; and
4.2.10. Perform all other necessary actions related to the licensing, monitoring, investigating and oversight of MAT programs.
W. Va. Code R. § 71-27-5 Certification; Approval and Exemptions
5.1. Hospitals that are licensed under Hospital Licensure, W. Va. Code R. §§71-12-1, et seq., and behavioral health facilities that are licensed under Behavioral Health Centers Licensure, W. Va. Code R. §§71-25-1, et seq., and which provide outpatient medication-assisted treatment as defined in W. Va. Code §16B-13-2 are subject to the provisions of this rule and to all other relevant federal and state licensing requirements as specified by the Inspector General.
5.2. A MAT program directly operated by the Department of Veterans Affairs, the Indian Health Service or any other department or agency of the United States is not required to obtain a state license.
5.3. Crisis Stabilization Units (CSU) are not required to obtain a state license if the following conditions are met:
5.3.1. Treatment at the CSU is for no more than 14 days; and
5.3.2. The CSU must document the referral of the patient to an appropriate MAT program upon discharge from the CSU.
W. Va. Code R. § 71-27-6 Licensure; Fees and Costs
6.1. General Licensure Provisions.
6.1.1. No person, partnership, association or corporation may operate an opioid treatment program in the State of West Virginia without first obtaining a license pursuant to W. Va. Code §16B-13-3 and this rule.
6.1.2. A license is valid only for the location and persons named and described in the application.
6.1.3. Each opioid treatment program location shall be licensed separately, regardless of whether the program is operated under the same business name or management as another program.
6.1.4. Before establishing, operating, maintaining or advertising an opioid treatment program within the State of West Virginia, a program shall:
6.1.4.a. Hold current, valid certification from the SAMHSA;
6.1.4.b. Be registered and qualified by the United States Department of Health and Human Services under the Controlled Substances Act, 21 U.S.C. §§ 801, et seq. (1970), as amended, to dispense medication-assisted treatment medications in the treatment of substance use disorder;
6.1.4.c. Be approved by the state opioid treatment authority for operation of an opioid treatment program in this state;
6.1.4.d. Have been approved for a certificate of need pursuant to W. Va. Code §16-13-12 and §§16-2D-1, et seq.; and
6.1.4.e. Obtain from the Director a license authorizing the operation of the opioid treatment program and facility.
6.1.5. Each licensed opioid treatment program shall designate a medical director. The medical director shall practice at the program and be responsible for the operation of the program in accordance with the requirements of this rule. An opioid treatment program may have two co-medical directors.
6.1.6. A license is not transferable or assignable.
6.1.7. If the ownership of an opioid treatment program changes, the new owner shall notify the Director within 10 days of the change in ownership and immediately apply for a new license. The new owner’s application for a license is valid for three months from the date the application is received by the Director.
6.1.8. The opioid treatment program shall notify the Director in writing 30 days prior to a change in name or location of the program and request an application form for a license amendment.
6.1.9. If there is a change in the medical director, the opioid treatment program must comply with the provisions of subsections 6.1.5. and 8.4.6. of this rule.
6.1.10. If the opioid treatment program is not in substantial compliance with this rule, but does not pose a significant risk to the health, safety or rights of the patients, a license expiring in less than one year may be issued.
6.1.11. A licensure survey may be conducted periodically during the course of the annual licensing term.
6.1.12. The Director or his or her designee may enter the premises of any practice, office or facility if the Director has reasonable belief that it is being operated or maintained as an opioid treatment program without a license.
6.1.13. If the owner, medical director or other person in charge of a licensed opioid treatment program or of any other unlicensed practice, office or facility which the Director has reasonable belief is being operated as an opioid treatment program refuses entry pursuant to this rule, the Inspector General shall petition the Circuit Court of Kanawha County or the county in which the program is located for an inspection warrant.
6.1.14. If the Director finds on the basis of an inspection that any person, partnership, association or corporation is operating as an opioid treatment program without a license, the opioid treatment program shall apply for a license within 10 days of receipt of notification by the Director.
6.1.15. An opioid treatment program that fails to apply for a license is subject to the penalties established by section 38 of this rule.
6.1.16. An opioid treatment program shall surrender an expired, revoked or otherwise invalid license to the Director upon written demand.
6.2. Licensure Application.
6.2.1. The program sponsor of an opioid treatment program shall submit an application for an opioid treatment program license to the Director not less than 30 days and not more than 60 days prior to the anticipated initiation of services.
6.2.2. All applications for an initial, provisional or renewed license shall include and provide the documentation specified in W. Va. Code §16-13-3 in addition to the following:
6.2.2.a. Documentation of all current federal accreditations, certifications and authorizations; and
6.2.2.b. A description of the organizational structure of the opioid treatment program, including identification of the governing body, advisory council and peer review committee.
6.3. License Fees and Inspection Costs.
6.3.1. All applicants for an initial, provisional or renewed license shall be accompanied by a non-refundable fee in the amount required by this rule. The annual renewal fee is based upon the average daily total census of the program. In addition to the set fee, the annual renewal fee shall be adjusted on the first day of June of each year to correspond with increases in the consumer price index. The amounts for initial, provisional and renewal feeds are as follows:
6.3.1.a. Initial license fee - $250;
6.3.1.b. Provisional license fee - only for existing programs as of the effective date of this rule seeking an initial license - $250;
6.3.1.c. Renewal license fee - fewer than 500 patients - $521.12;
6.3.1.d. Renewal license fee - 500 to 1,000 patients - $1,042.24; and
6.3.1.e. Renewal license fee - more than 1,000 patients - $1,563.36.
6.3.2. An opioid treatment program shall pay for the cost of the initial inspection made by the Director prior to issuance of a license. The cost of the initial inspection of an opioid treatment program is $400, plus the actual costs of the initial inspections and shall be billed by the Director.
6.4. Initial Inspection and Issuance of License.
6.4.1. Upon receipt of an application for an initial license to operate as an opioid treatment program, the Director or his or her designee shall make an inspection of the program and facility in order to determine whether the program has satisfied all of the federal and state requirements for licensure.
6.4.2. If the inspection reveals violations, deficiencies or shortcomings on the part of the opioid treatment program or facility, the Director shall advise the program of the deficiencies. The program may submit one or more written plans of correction demonstrating compliance with the corrections required. The Director may conduct follow-up inspections if required.
6.4.3. Following an application review, onsite inspection or inspections and approval of subsequent plans of correction by the Office of Health Facility Licensure and Certification as may be needed, if there is substantial compliance with the requirements of this rule and the cost of the inspection has been paid as required by subsection 6.3.2., the Director issue a license in one of three categories:
6.4.3.a. An initial license, valid for 12 months from the date of issuance, shall be issued to programs establishing a new service found to be in substantial compliance on initial review with regard to policy, procedure, facility and recordkeeping regulations;
6.4.3.b. A provisional license shall be issued when an opioid treatment program seeks a renewal, or is an existing program as of the effective date of this rule and is seeking an initial license, and the opioid treatment program is not in substantial compliance with this rule, but does not pose a significant risk to the rights, health and safety of a consumer. It shall expire not more than six months from the date of issuance, and may not be consecutively reissued; or
6.4.3.c. A renewal license shall be issued when an opioid treatment program is in substantial compliance with this rule. A renewal license shall expire not more than 12 months from the date of issuance.
6.4.4. A license is valid for the opioid treatment program named in the application and is not transferable or assignable.
6.5. Denial of License.
6.5.1. The Director may deny an application for an initial, provisional or renewal license if:
6.5.1.a. The Director determines that the application is deficient in any respect;
6.5.1.b. The opioid treatment program will not be or is not being operated in accordance with federal or state standards, or federal or state standards, laws and rules;
6.5.1.c. The opioid treatment program will not permit an inspection or survey to proceed or will not permit in a timely manner access to records or information deemed relevant by the Director;
6.5.1.d. The opioid treatment program has made misrepresentations in obtaining accreditation, certification or licensure;
6.5.1.e. The opioid treatment program has an owner, employee or associate who has received an ineligible employment fitness determination from the West Virginia Clearance for Access: Registry and Employment Screening division of the Office of Inspector General and has not received a variance;
6.5.1.f. The opioid treatment program fails to have a medical director practicing at the program location; or
6.5.1.g. The opioid treatment programs fails to have an established process for maintaining current, accessible patient records from admission through discharge.
6.5.2. If the Director determines not to issue a license, the Director shall notify the applicant in writing of the denial and the basis for the decision. Following the denial, the program must follow closure procedures in subsection 37.2.3. of this rule, including notification to existing patients.
6.5.3. An opioid treatment program shall surrender an expired, revoked or otherwise invalid license to the Director upon written demand.
6.5.4. An opioid treatment program may protest the denial of an initial, provisional or renewal license pursuant to the administrative procedures in section 39 of this rule.
6.6. Renewed or Amended Licenses.
6.6.1. The opioid treatment program shall submit an application for a license to the Director not less than 60 days prior to the expiration of the current license. After the Director receives a complete renewal application with the required fee, the existing license shall not expire until the new license has been issued or denied.
6.6.2. The program shall notify the Director 30 days prior to a change in the name, geographic location or services of a program or a change in the substantial nature of the opioid treatment program and simultaneously shall apply for a license amendment.
W. Va. Code R. § 71-27-7 Annual Inspections
7.1. All opioid treatment programs shall permit inspections and surveys by duly authorized employees of the Director and any other state or federal governmental authority or accreditation or certification body. All inspections shall be conducted in accordance with applicable federal and state licensing, controlled substance and confidentiality laws.
7.2. Each opioid treatment program shall be accredited and registered as required by the federal agency responsible for oversight of opioid treatment programs. The opioid treatment program shall permit inspections and surveys by all accreditation agencies and shall submit a copy of the results of the accreditation survey to the Director and to the state opioid treatment authority when they become available.
7.3. Each licensed opioid treatment program shall be inspected annually by employees or agents designated by the Director. Inspections shall include, but are not limited to:
7.3.1. Observation of service delivery;
7.3.2. Review of life safety and environmental conditions;
7.3.3. Review of clinical and administrative records;
7.3.4. Interviews with staff, administrators and consenting patients; and
7.3.5. Review of staff education and training requirements.
7.4. The opioid treatment program shall comply with any reasonable requests from the Director to have access to the service, staff, patients, records of the operation of the opioid treatment program, and records of services provided to patients. Patient records shall remain confidential unless otherwise permitted by law.
7.5. Within 30 working days of completion of an inspection, the Director shall issue a report reflecting the findings of the investigation and conclusions as to whether the opioid treatment program passed the inspection. Deficiencies and shortcomings shall be noted in the report. The Director may permit the opioid treatment program to develop a plan of correction.
7.6. Based upon an opioid treatment program’s previous substantial compliance with this rule, the Director may waive the requirement for an onsite inspection for issuance of an amended license.
W. Va. Code R. § 71-27-8 Administrative Organization, Management and Staffing
8.1. All employees and volunteers of an opioid treatment program shall be subject to the provisions of the West Virginia Clearance for Access: Registry and Employment Screening Act, W. Va. Code §§16B-15-1, et seq., and W. Va. Code R. §§71-11-1, et seq.
8.2. Each opioid treatment program shall identify a program administrator, medical director(s), program physician(s), counseling staff, a program sponsor, a governing body, an advisory council, and a peer review committee.
8.3. Program Administrator.
8.3.1. The administrator of the opioid treatment program shall have at a minimum a bachelor’s degree in an appropriate area of study and a minimum of four years of experience in the fields of substance use disorders, behavioral health or health care administration; or a master’s degree in an appropriate professional area of study and a minimum of two years of experience in the fields of substance use disorders, behavioral health or health care administration; or eight years of experience in the fields of substance use disorders, behavioral health or health care administration; or be a program physician.
8.3.2. The administrator is responsible for the day-to-day operation of the opioid treatment program in a manner consistent with the laws and regulations of the United States Department of Health and Human Services, Drug Enforcement Administration (DEA), and the laws and rules of the State of West Virginia.
8.3.3. Duties of the administrator include:
8.3.3.a. Contributing to development of policies and procedures for operation of the program;
8.3.3.b. Maintenance and security of the facility;
8.3.3.c. Employment, credentialing, evaluation, scheduling, training and management of staff;
8.3.3.d. Protection of patient rights;
8.3.3.e. Conformity of the program with federal confidentiality regulations, namely, 42 C.F.R. Part 2;
8.3.3.f. Security of medication storage and safe handling of medications;
8.3.3.g. Management of the facility budget;
8.3.3.h. Implementation of program policies and procedures and governing body policy; and
8.3.3.i. Communication with the medical director and governing body.
8.4. Medical Director.
8.4.1. Each opioid treatment program shall have a designated medical director. The medical director shall have a full, active and unencumbered license to practice allopathic medicine or surgery from the West Virginia Board of Medicine or to practice osteopathic medicine or surgery from the West Virginia Board of Osteopathic Medicine in this state.
8.4.2. The medical director shall also meet the following requirements:
8.4.2.a. If the medical director prescribes a partial opioid agonist, he or she shall complete the requirements for the Drug Addiction Treatment Act of 2000, Public Law No. 106-310, Title XXXV; and
8.4.2.b. Demonstrate experience in substance use disorder treatment and medication-assisted treatment; or
8.4.2.c. Have a written plan to attain competence in substance use disorder treatment and medication-assisted treatment within a probationary time period as provided in subsection 8.4.3. herein.
8.4.3. The medical director may submit a written plan to attain competence in substance use disorder treatment and medication-assisted treatment to the state opioid treatment authority and state oversight authority for approval at least two weeks prior to employment at an opioid treatment program.
8.4.3.a. The time frame for completion of the plan may not exceed 12 months from the date of the appointment as medical director. The physician may work as a medical director during this probationary time period, subject to the supervision and reporting requirements of this rule.
8.4.3.b. During the probationary time period, the medical director shall be supervised on a regular basis by a physician licensed in this state with demonstrated competence in the field of substance use disorder and medication-assisted treatment.
8.4.3.c. Consultation with and supervision of a medical director during the probationary time period may be provided by telephone or video conference and shall be documented, initialed or verified, either in ink or electronically, and dated by both the supervising and supervised physicians.
8.4.3.d. The administrator of the opioid treatment program is responsible for maintaining documentation regarding the medical director’s training and experience in a file which is current and readily available at all times. The administrator also is responsible for ensuring that the plan of development is completed within the approved time lines.
8.4.3.e. The state opioid treatment authority may request periodic documentation of continuing education during the initial probationary period and afterward if the documentation provided at the end of that period is not satisfactory.
8.4.4. The medical director shall maintain authority over the medical aspects of treatment offered by the opioid treatment program. The medical director is responsible for:
8.4.4.a. All medication-assisted treatment decisions;
8.4.4.b. Operation of all medical aspects of the treatment program;
8.4.4.c. Administration and supervision of all medical services;
8.4.4.d. Ensuring that the opioid treatment program is in compliance with all applicable federal, state and local laws, rules and regulations;
8.4.4.e. Obtaining and maintaining his or her continuing medical education in the field of substance use disorder treatment and medication-assisted treatment on a documented and ongoing basis;
8.4.4.f. Approving the basic and continuing educational programs of all staff employed by or volunteering at the opioid treatment program; and
8.4.4.g. Determining the ability of the program physicians and physician extenders to work independently within the applicable scope of practice;
8.4.5. A medical director, or his or her designee, shall ensure regulatory compliance and carry out those duties specifically assigned to the medical director. A medical director may delegate the day to day operation of the program to a program physician or physician extender as defined by this rule. An opioid treatment program may designate two co-medical directors.
8.4.6. Within 10 days after the withdrawal or termination of the medical director, the owner or owners of the program shall notify the Director of the identity of another medical director for the program. Another licensed physician shall assume the duties of the medical director on a temporary basis, not to exceed 60 days, until a new medical director is identified and begins work at the program. The interim physician may be another owner of the program or a program physician employed by or associated with the program.
8.5. Professional Medical Staff.
8.5.1. The opioid treatment program may employ and use program physicians, physician extenders and other health care professionals working within their scope of practice who have received sufficient education, training, experience, or any combination thereof, to enable that person to perform the assigned functions. All physicians, nurses and other licensed professional care providers must comply with the credentialing requirements of their respective professions. The opioid treatment program may only employ advance practice registered nurses and physician’s assistants as physician extenders.
8.5.2. All physicians and physician extenders employed by the opioid treatment program shall be actively licensed in West Virginia and shall have:
8.5.2.a. A minimum of one year’s experience in substance use disorder treatment and medication-assisted treatment settings; or
8.5.2.b. Meet the following requirements:
8.5.2.b.1. Active enrollment in a plan of education for obtaining competence in medication-assisted treatment methods and substance use disorders that is approved by the medical director. The medical director shall certify the individual’s completion of the plan of education when, in the discretion of the medical director, it is satisfactorily accomplished; and
8.5.2.b.2. Complete the certification, training programs or continuing education programs recommended and approved by the medical director of the opioid treatment program.
8.5.3. During all hours of operation when medication is dispensed or administered, every opioid treatment program shall have present and on duty at the program at least one of the following actively-licensed health care professionals.
8.5.4. During al hours of operation when medication is dispensed or administered, every opioid treatment program shall have present and on duty at the program at least one of the following actively-licensed health care professionals:
8.5.4.a. Program physician;
8.5.4.b. Physician extender;
8.5.4.c. Registered nurse.
8.5.5. Plans of Education.
8.5.5.a. Program physicians and physician extenders operating under a plan of education shall be supervised by the medical director at a frequency appropriate for the qualifications and experience of the employee.
8.5.5.b. The program administrator of the opioid treatment program shall document when an employee undertakes a plan of education; maintain all records regarding plans of education for the professional medical staff; and ensure that the medical director monitors and certifies satisfactory completion of each plan of education.
8.5.5.c. The medical director shall approve each plan of education and the ability of a program physician or physician extender to work independently within his or her scope of practice. The medical director shall sign an affidavit that verifies and documents an employee’s successful completion of a plan of education and the medical director’s approval for that person to provide services on an independent basis within his or her scope of practice.
8.6. Counseling Staff.
8.6.1. Counseling through an opioid treatment program shall be provided by counseling staff that meet the qualifications as described in W. Va. Code §16B-13-5(d).
8.6.2. The opioid treatment program shall assign a primary counselor to each patient to contribute to the appropriate treatment plan for the patient and to monitor patient progress.
8.6.3. Each opioid treatment program’s policies and procedures shall establish ratios of primary counselors to persons served that are adequate to allow sessions to occur as mandated and that allow persons served access to a primary counselor, either on site or by referral, but there shall be at least one counselor for every 50 patients in the program.
8.6.4. Any unlicensed or uncertified counseling staff employed or used on a referral basis by the program shall be directly supervised by a licensed or certified professional or advanced alcohol and drug counselor, or both. At a minimum, the supervisor shall provide at least one hour of supervision per 20 hours of direct service. Supervision may be group in nature, but must consist of case consultation and discussion or clinical training rather than administrative oversight.
8.6.5. The administrator of the opioid treatment program is responsible for documentation of supervision, which shall be available for review at all times.
8.6.6. Newly employed counselors and other non-physician clinical staff without experience in a recovery-based opioid treatment program shall receive initial training lasting at least 20 hours and consisting of, at a minimum, the following:
8.6.6.a. Substance use disorder overview;
8.6.6.b. Opioid treatment, detoxification protocols, recovery models and basic pharmacology and dosing;
8.6.6.c. Characteristics of the substance use disorder population;
8.6.6.d. Drug screening and observation of sample collection;
8.6.6.e. Program policy and procedure;
8.6.6.f. Confrontation, de-escalation and anger management;
8.6.6.g. Cultural sensitivity as necessary and appropriate;
8.6.6.h. Current strategies for identifying and treating alcohol, cocaine and other substance use disorders;
8.6.6.i. Identification of co-occurring behavioral health or developmental disorders; and
8.6.6.j. Other clinical issues as appropriate for the population served.
8.6.7. An experienced counselor newly employed from another MAT program may be exempt from the mandatory initial training required by this rule, if the program is able to verify and document that mandatory initial training has been received within the previous two years. The administrator of the opioid treatment program shall document in the personnel file any exemption granted and the basis for the examination.
8.6.8. Counselors with less than one year of full-time experience in the field of substance use disorder treatment and medication-assisted treatment shall accompany an experienced counselor at all times for a minimum of two weeks before seeing persons served without immediate and constant supervision.
8.7. Unlicensed Clinical Staff and Volunteers.
8.7.1. An opioid treatment program may employ unlicensed clinical staff and utilize volunteers to assist in the operation of the program and facility. The program shall develop and implement policies and procedures which specify the roles and responsibilities of each unlicensed employee and volunteer. Documentation of the responsibilities, training and other obligations of an unlicensed clinical staff employee or volunteer shall be included in the personnel file of the employee or volunteer.
8.7.2. All unlicensed clinical staff and volunteers shall receive direct on-site supervision and be provided with assistance, directions for activity and support.
8.8. Program Sponsor.
8.8.1. The program sponsor is the person named in the application for certification and licensure of an opioid treatment program. The program sponsor shall agree on behalf of the opioid treatment program to adhere to all requirements set forth in federal or state laws, rules or regulations regarding the use of medication-assisted treatment medications in the treatment of substance use disorder.
8.8.2. The program sponsor is responsible for the general establishment, certification, licensure and operation of the opioid treatment program.
8.8.3. The program sponsor need not be a licensed physician. If the program sponsor is not a licensed physician, the opioid treatment program shall employ a licensed physician for the position of medical director.
8.9. Governing Body.
8.9.1. The governing body is one or more persons identified by the program sponsor as being legally responsible for the operation of the opioid treatment program. A governing body may be a board, a single entity or owner or a partnership.
8.9.2. The governing body is responsible for designation of an administrator of the opioid treatment program.
8.10. Advisory Council.
8.10.1. Each opioid treatment program shall have an advisory council comprised of a designated group of no fewer than three individuals to serve in a non-managerial advisory capacity to the administrator and governing body. The advisory council shall consist of individuals served by the program, at least one staff representative and interested community representatives or advocates.
8.10.2. The advisory council shall not have access to any patient identifying information. The staff liaison to the administrator is responsible for ensuring that no identifying information is provide to the advisory council.
8.10.3. The advisory council shall meet at least quarterly during hours other than when patients are present in the building and shall:
8.10.3.a. Review program policies and procedures annually or as proposed for revision;
8.10.3.b. Review incidents and grievances quarterly;
8.10.3.c. Review administrative discharges quarterly;
8.10.3.d. Make recommendations for operational changes or improvements;
8.10.3.e. Be trained in patient confidentiality regulations;
8.10.3.f. Keep records of meetings and describe business conducted, members present and members absent; and
8.10.3.g. Work to assist the opioid treatment program in identifying, addressing and resolving community problems such as traffic, patient loitering and medication diversion so as to ensure the program operations do not adversely affect community life.
8.11. Peer Review Committee.
8.11.1. Each opioid treatment program shall establish a peer review committee to review whether the program is following protocols and guidelines from approved authorities. At least one member of the peer review committee shall be a physician with documented training and experience in the field of substance use disorders and medication-assisted treatment.
8.11.2. The peer review committee shall evaluate the opioid treatment program at least once every four months to ensure that it follows treatment guidelines from approved authorities. The review shall consist of a survey of no less than 20 randomly chosen active clinical files. The survey shall be documented on a form approved by the Director that may be found at https://oig.wv.gov/OHFLAC.
8.11.3. The peer review committee shall review the selected case files in order to determine whether the opioid treatment program is in compliance with all applicable policies and procedures regarding patient intake, assessment, treatment, detoxification, maintenance and recovery.
8.11.4. The peer review committee shall make a determination of the effectiveness of existing policies and procedures and make recommendations to the governing body for any changes that should be made. The peer review committee may also make recommendations to the governing body for updates to policies and procedures in accordance with updated and approved national standards and other factors deemed relevant by the peer review committee.
8.11.5. The results of each peer review committee evaluation shall be included in a report that is submitted to the Director on a quarterly basis.
8.12. Admissions Committee.
8.12.1. Each opioid treatment program shall have an admissions committee, consisting of the program administrator or his or her designee, the medical director or his or her designee, and a senior counselor.
8.12.2. Exceptions to the general admissions criteria shall be documented and approved by the admissions committee.
8.12.3. Exceptions to the admissions criteria include, but are not limited to:
8.12.3.a. Circumstances where a physician did not observe or interview the patient within three days of admission; and
8.12.3.b. Circumstances where a physician did not observe or interview the patient at all.
8.12.4. Patients admitted to an opioid treatment program as an exception to the general admissions criteria shall be monitored and tracked annually for relevant clinical patterns. The results of the tracking shall be submitted to the state opioid treatment authority or other monitoring body upon request.
W. Va. Code R. § 71-27-9 Environment and Operations
9.1. Service Operation Schedule.
9.1.1. Except as otherwise provided herein, all opioid treatment programs shall be open for business seven days-per-week. The program may be closed for eight holidays and two training days per year.
9.1.2. Opioid treatment programs may close on Sundays if the following criteria are met:
9.1.2.a. The program develops and implements policies and procedures that address recently inducted patients receiving services, patients not currently on a stable dose of medication, patients that present as non-compliant with program policies and procedures and their individualized treatment plan of care, and individuals who previously picked up take-home medications on Sundays, security of take-home medication doses, and health and safety of individuals receiving services;
9.1.2.b. The program receives prior approval from the state opioid treatment authority for Sunday closings;
9.1.2.c. Once approved, the program shall notify individuals receiving services in writing at least 30 days in advance of their intent to close on Sunday. The notice shall address the risks to the patients the security of take-home medications. All individuals shall receive an orientation addressing take-home policies and procedures, and this orientation shall be documented in the individual’s record prior to receiving take-home medications; and
9.1.2.d. The program shall establish procedures for emergency access to dosing information 24 hours a day, seven days-per-week, this information may be provided via an answering service or other electronic measures. Information needed includes the patient’s last dosing time and date, and dose.
9.1.3. Medication dispensing hours shall include at least two hours each day of operation outside normal working hours, i.e., 9:00 a.m. and after 5:00 p.m. The state opioid treatment authority may approve an alternate schedule if that schedule meets the needs of the population served by the program.
9.2. Payments for services rendered may be made either by West Virginia Medicaid, private insurance, or by cash as described in subsection 9.2.4.
9.2.1. The opioid treatment program shall be eligible for, and not prohibited from, enrollment with West Virginia Medicaid and other private insurance.
9.2.2. Prior to directly billing a patient for any opioid treatment, an opioid treatment program must receive either a rejection of prior authorization, or rejection of a submitted claim or a written denial from a patient’s insurer or West Virginia Medicaid denying coverage for such treatment.
9.2.3. The opioid treatment program shall document in the patient’s record any rejection of prior authorization, rejection of a submitted claim for written denial from a patient’s insurer or West Virginia Medicaid denying coverage for opioid treatment. The opioid treatment program shall also clearly document in the patient’s record if the patient has no insurance or has voluntarily and with full knowledge of the financial obligations, including all treatment costs, requested a claim not be submitted to their insurer or West Virginia Medicaid. When any instance described in this section regarding direct billing and acceptance of cash payments from a patient occurs, the opioid treatment program shall clearly document in the patient’s record the rationale and medical necessity for acceptance into the program.
9.2.4. The opioid treatment program may directly bill and accept cash payments from a patient only after the requirements of subsections 9.2.1., 9.2.2. and 9.2.3. herein, have been fulfilled and documented.
9.2.5. At the option of the opioid treatment program, treatment may commence prior to billing.
9.3. Each opioid treatment program facility shall have:
9.3.1. Sufficient space and adequate equipment for the provisions of all services specified in the program’s description of treatment services;
9.3.2. Clean, safe and well-maintained patient and staff areas;
9.3.3. A secure room and lockable equipment for patient records;
9.3.4. Private offices or areas for individual and group therapeutic meetings, sufficient in number to address the counseling and treatment needs of the population served;
9.3.5. Sanitary, secure and private dosing areas;
9.3.6. Sufficient restrooms for the estimated patient population with areas for observation of specimen production, if necessary; and
9.3.7. Adequate parking areas for the expected flow of traffic.
9.4. The opioid treatment program facility may provide secure personnel in lobby and parking areas, either clinic staff or contracted, if the population served or clinic environment warrants such an arrangement. If contracted staff is used for security, the staff must be trained in patient confidentiality.
9.5. Infection Control.
9.5.1. The opioid treatment program shall develop, implement and maintain an effective infection control program that protects the patients, their families and clinic personnel by preventing and controlling infections and communicable diseases.
9.5.2. The program shall include the implementation of a nationally recognized system of infection control guidelines.
9.5.3. The opioid treatment program shall have an active surveillance and education program for the prevention, early detection, control and investigation of infections and communicable diseases.
9.5.4. The opioid treatment program shall designate a person or persons, with appropriate education and training, as infection control officer to develop and implement policies governing control of infections and communicable diseases for patients and personnel.
9.6. Community Relations.
9.6.1. The program shall develop and implement policies and procedures for community relations.
9.6.2. A program shall be responsible for ensuring that its patients do not cause unnecessary disruption to the community or act in a manner that would constitute disorderly conduct or harassment by loitering on the program’s property.
9.6.2.a. Each program shall provide the state opioid treatment authority and state oversight authority, when requested, with a specific plan describing the efforts it will make to avoid disruption of the community by its patients and the actions it will take to assure responsiveness to community needs. This plan shall, at a minimum:
9.6.2.a.1. Identify program personnel who will function as community relations coordinators and define the goals and procedures of the community relations plan;
9.6.2.a.2. Include policies and procedures to resolve community problems, including, but not limited to, patient loitering and medication diversion, to ensure that program operations do not affect community life adversely; and
9.6.2.a.3. Include policies and procedures for soliciting patient and community ideas about medication-assisted treatment, addressing community concerns and the program’s presence in the community.
9.6.2.b. Each program shall document community relations efforts and community contacts, including the resolution of issues identified by community members or patients.
9.7. Emergency Preparedness. -- The program’s emergency preparedness plan shall include, but not be limited to, the provision of the continuation of medication-assisted treatment in the event of an emergency or natural disaster.
W. Va. Code R. § 71-27-10 Facility Construction and Renovations; Life Safety Policies and Procedures
10.1. Before extensive construction or renovation of a MAT program facility begins, the program shall submit to the Director for approval a complete set of the plans for the project, which includes the drawings and specifications for the architectural, structural and mechanical design and work.
10.2. The Director shall advise the program within 60 days whether approval has been granted. In the event the plans for the project are not approved, the Director shall set forth in writing the reasons for the disapproval and provide the program the opportunity to correct any deficiencies. Extensive construction or renovation of a facility may not begin until the Director has issued final approved of the plans.
10.3. All MAT program facilities shall comply with the current standards of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq. (1990), as amended.
10.4. All MAT program facilities must meet all other requirements of applicable federal or state regulatory or oversight agencies.
10.5. Life Safety Policies and Procedures.
10.5.1. Each MAT program shall develop, implement and maintain policies and procedures regarding the appropriate and safe administration of medications and other medical treatment. The policies and procedures shall:
10.5.1.a. Ensure that the correct dose of medication is administered and that appropriate actions are taken if a mistake is made, including a mechanism for reporting unusual incidents to appropriate program staff;
10.5.1.b. Establish a current plan of emergency administration of medications in case the program must be closed temporarily, including how patients will be informed of these emergency arrangements;
10.5.1.c. Ensure that there is appropriately trained staff on duty at all times who are, at a minimum, proficient in cardiopulmonary resuscitation and reversal of opiate overdose; and
10.5.1.d. Ensure that each medication-assisted treatment medication used by the MAT program is administered and dispensed, if applicable, in accordance with its approved product labeling. Dosing, dispensing and administration decisions shall be made by a program physician familiar with the most up-to-date product labeling. These procedures must ensure that any significant deviations from the approved labeling, including deviations with regard to dose frequency, or the conditions of use described in the approved labeling, are specifically documented in the patient’s record.
10.6. Each MAT program shall develop, implement and maintain policies and procedures regarding safe and effective access to the facility and staff. The policies and procedures shall:
10.6.1. Provide 24-hour, seven day-per-week access to designated program staff, as described in subdivision 9.1.2.d., so that patient emergencies may be immediately addressed and dosage levels verified;
10.6.2. Require the program to display in facility offices and waiting areas the names and telephone numbers of individuals or agencies who should be contacted in case of an emergency;
10.6.3. Include an up-to-date disaster plan that specifies emergency evacuation procedures, fire drills, and maintenance of fire extinguishers; and
10.6.d. Address safety and security issues for patients and staff, including training staff to handle physical or verbal threats, acts of violence, inappropriate behavior, or other escalating and potentially dangerous situations, with emphasis on when security guards or police need to be summoned.
W. Va. Code R. § 71-27-11 For-Cause Inspections; Complaints
11.1. The Director may at any time conduct unannounced inspections of a MAT program for cause if the Director has received a complaint about the program or has reason to believe that the program may be operating in violation of federal or state statutes, rules or regulations; may be providing substandard treatment or may be serving as a possible source of diverted medications.
11.2. Any person may file a complaint with the Director alleging violation of applicable laws, rules or policies by a MAT program. A complaint shall identify the MAT program by name and state the nature of the complaint.
11.3. At the time of any on-site investigation activities, the investigator shall notify the program sponsor or administrator at opioid treatment programs and medical director of the general reason for the investigation.
11.4. Within 15 working days of the investigation, the Director shall provide to the program sponsor or administrator a written report of the results of the investigation. The report shall specify any deficiency found and the rule that forms the basis for the violation.
11.5. The Director may permit the MAT program to develop a plan of correction to address any noted violations or deficiencies. The Director may advise and consult with the program sponsor, administrator or other personnel with the opioid treatment programs in order to assist with a plan of correction.
11.6. The Director, in consultation with the Inspector General, may impose a civil money penalty, suspend or revoke a license or take such other action as deemed appropriate to address any violations or deficiencies. In the event the Director determines that the continued operation of the MAT program is a threat to the health, welfare and safety of its patients or employees, the Director, in consultation with the Inspector General, may issue an order immediately closing the facility pursuant to applicable administrative procedures.
11.7. Upon completion of the investigation, the Director shall notify the complainant whether the allegations have been substantiated and how to obtain a copy of the report.
11.8. The Director shall keep confidential any information that could reasonably lead to the identification of a complainant and of any patient involved in the complaint or investigation. The Director shall not disclose such information without the written consent of the complainant or patient. The Director shall delete any identifying information before disclosure of investigative information to the public.
11.9. 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.
11.10. The Director, in consultation with the Inspector General, may suspend or revoke a license of a MAT program for violating the prohibitions of this section.
W. Va. Code R. § 71-27-12 Plans of Correction
12.1. Within 10 working days after receipt of the inspection report, the program sponsor or administrator shall submit to the Director for approval a written plan to correct all deficiencies that are in violation of this rule, unless a waiver or variance is requested by the MAT program and granted by the Director, in consultation with the Inspector General. The plan of correction shall specify:
12.1.1. Any action taken or procedures proposed to correct the deficiencies and prevent their reoccurrence;
12.1.2. The date of completion or each action taken or to be taken; and
12.1.3. The signature of the head of the governing body or his or her designee.
12.2. The proposed plan of correction shall be approved, modified or rejected by the Director in writing. The MAT program may make modifications to the plan at a later date in conjunction with and approved by the Director.
12.3. The Director shall state the reasons for rejection or modification of any plan of correction.
12.4. The program’s sponsor or administrator shall submit a revised plan of correction to the Director within 10 working days of receipt of a rejection by the Director.
12.5. The MAT program shall immediately correct a violation that severely risks the health or safety of a patient or other persons.
12.6. The Director shall determine if satisfactory corrections have been made and advise the program sponsor of any compliance or continued deficiencies in writing.
12.7. The Director may provide consultation to the applicant or licensee in obtaining compliance with this rule.
W. Va. Code R. § 71-27-13 Waivers and Variances
13.1. The Director, in consultation with the Inspector General, may grant a waiver or variance to the provisions of this rule under any of the following circumstances:
13.1.1. A strict application of the rule clearly would be impractical and if any alternate arrangements are not detrimental to the health or safety of the patients or employees of the program; or
13.1.2. A waiver, variance or extension of a provisional license is necessary under extraordinary circumstances or otherwise to protect public health;
13.1.3. The waiver or variance serves the best interests of patient safety and quality of care; or
13.1.4. A variance pursuant to W. Va. Code §16B-13-5(e). The program shall also document where a patient has no insurance. At the option of the medication-assisted treatment program, treatment may commence prior to billing.
13.2. Any waiver or variance approved by the Director shall be in writing.
13.3. All waivers or variances shall be reviewed at least annually by the designated state oversight agency.
W. Va. Code R. § 71-27-14 Reports and Records
14.1. Inspection Reports and Records.
14.1.1. The Director shall keep on file a report of any inspection, survey or investigation of a MAT program or any program sponsor, owner, employee, volunteer or patient thereof.
14.1.2. Information in reports or records shall be available to the public except for the following:
14.1.2.a. Information regarding complaint and subsequent investigations that is deemed confidential by any provision of this rule or applicable state or federal laws;
14.1.2.b. Information of a personal nature from a patient or personnel file; or
14.1.2.c. Information required to be kept confidential by state or federal law.
14.1.3. A report of an inspection or investigation made public shall also state whether a plan of correction has been submitted to or approved by the Director.
14.2. Statistical Reports and Records. The MAT program shall file a quarterly statistical report with the Director on a form prescribed by the Director, which includes the following information:
14.2.1. The total number of patients receiving medication-assisted treatment;
14.2.2. The number of patients discharged from the program;
14.2.3. The state of residency of each patient;
14.2.4. The number of patients discharged from the program;
14.2.5. The total months the patients were in the treatment program prior to discharge;
14.2.6. Whether the discharge was for:
14.2.6.a. Termination or disqualification:
14.2.6.b. Voluntary withdrawal prior to completion of all requirements of detoxification as determined by the MAT program;
14.2.6.c. Successful completion of the individualized treatment plan of care; or
14.2.6.d. An unexplained reason;
14.2.7. Statistics demonstrating program compliance with the random drug testing requirements of subdivision 34.2.4.a. of this rule;
14.2.8. Confirmation that the random drug tests were truly random in regard to both the patients tested and to the times random drug tests were administered by lottery or some other objective standard so as not to prejudice or protect any particular patient;
14.2.9. Confirmation that the random drug tests were performed in accordance with the requirements in subdivision 34.2.4.a.;
14.2.10. The total number tested and the number of positive results; and
14.2.11. The number of expulsions from the MAT program.
14.3. Incident Reporting and Adverse Events.
14.3.1. Each MAT program shall develop and implement policies and procedures for comprehensively documenting, investigating, taking corrective action and tracking instances of adverse events or incidents.
14.3.2. Incidents or adverse events may include:
14.3.2.a. Program medication errors or other known medication errors;
14.3.2.b. Potentially lethal patient suicide attempts;
14.3.2.c. Drug or substance-related hospitalization of a patient;
14.3.2.d. Patient death or serious injury due to trauma, suicide, medication error or unusual circumstances;
14.3.2.e. Harm to family members or others from ingesting a patient’s medication;
14.3.2.f. Selling drugs or substances on the premises;
14.3.2.g. Medication diversion;
14.3.2.h. Harassment or abuse, including physical, verbal, sexual and emotional, of patients by staff;
14.3.2.i. Theft, burglary, break-in or similar incident at the program;
14.3.2.j. Violence;
14.3.2.k. Significant disruption of services due to disaster such as fire, storm, flood or another occurrence; and
14.3.2.l. Incident with potential for negative community reaction or which the program director or medical director believes may lead to community concern.
14.3.3. Incidents or adverse events shall be reviewed on a quarterly basis by the advisory council which may choose to make recommendations to the administration, governing body or owner or owners regarding the improvements in the process to prevent further incidents.
14.3.4. The program shall assure in the event of an incident or adverse event that:
14.3.4.a. The incident or adverse event is fully documented and appropriately reported to the correct state agencies as necessary;
14.3.4.b. There is prompt investigation and review of the situation surrounding the incident or adverse event;
14.3.4.c. Timely and appropriate corrective action is taken; and
14.3.4.d. Ongoing monitoring of any corrective action takes place until effectiveness of the action is established.
14.3.5. Within seven days of an incident or adverse event, the program shall file a report with the state oversight agency on the incident or adverse event consisting of the following:
14.3.5.a. The action or actions implemented to prevent the reoccurrence of the incident or adverse event;
14.3.5.b. The time frames for the action or actions to be implemented;
14.3.5.c. The person or persons designated to implement and monitor the action or actions; and
14.3.5.d. The strategies for the measurements of effectiveness to be established.
14.3.6. The MAT program shall report any death involving drug overdose or drug-related complications to the state opioid treatment authority and the state oversight agency within 24 hours of the program receiving notification of the mortality.
14.3.7. A root-cause analysis shall be done for each incident or adverse effect.
W. Va. Code R. § 71-27-15 Staff Training and Credentialing
15.1. Each MAT program shall ensure that all doctors, physician assistants, advance practice registered nurses, licensed practical nurses, counselors, psychologists, marriage and family therapists, social workers and other licensed or certified professional care providers comply with the credentialing requirements of their respective professions, obtain and maintain a current license, and complete all continuing education requirements of the licensing board, W. Va. Code §16B-13-5(d) and this rule.
15.2. Clinical staff of a MAT program may include employees, independent contractors or both. The MAT program shall be responsible for ensuring that staff and contractors comply with all provisions of this rule. All clinical staff members and volunteers shall complete initial and continuing education and training that is specific to their job function, their interactions with patients, the pharmacotherapies to be used at the program, and the patient populations to be served.
15.3. Each MAT program shall develop detailed job descriptions for credentialed and non-credentialed staff and volunteers that clearly define the education, training, qualifications and competencies needed to provide specific services. The job descriptions shall be provided to and reviewed with all employees or volunteers at the time of the initial interview, upon employment and whenever there are significant changes in job assignment or a modification of the employee or volunteer’s job description or responsibilities.
15.4. Within 10 days of the date any new clinical staff member or volunteer begins working at a MAT program, the program shall provide the staff member or volunteer with an orientation as to the person’s primary job responsibilities and requirements. All clinical staff members and volunteers shall receive formal training in confidentiality issues and requirements prior to beginning work at the program.
15.5. Each MAT program shall maintain confidential individual personnel files for every clinical staff member or volunteer, that shall contain, at a minimum:
15.5.1. The application for employment, contract or request to work as a volunteer;
15.5.2. Documentation of the date of employment;
15.5.3. Identifying information and emergency contacts;
15.5.4. Documentation of completion of orientation, internal and external training and continuing education;
15.5.5. Documentation of all licenses, certifications or other credentials;
15.5.6. Documentation relating to performance, supervision, disciplinary actions and termination summaries;
15.5.7. Detailed job descriptions; and
15.5.8. Evidence that each opioid treatment program employee, independent contractor or volunteer has received an eligibility fitness determination or variance from the West Virginia Clearance for Access: Registry and Employment Screening division of the Office of Inspector General.
15.6. The MAT program shall have a policy that delineates procedures governing disciplinary actions and non-voluntary termination of staff or volunteers.
W. Va. Code R. § 71-27-16 Risk Management
16.1. Each MAT program shall:
16.1.1. Obtain a voluntary, written, program-specific informed consent to treatment from each patient at admission;
16.1.2. Inform each patient about all treatment procedures, services and other policies and procedures throughout the course of treatment;
16.1.3. Obtain voluntary, written, informed consent to the prescribed therapy from each patient before dosing begins;
16.1.4. Inform each patient that:
16.1.4.a. The goal of medication-assisted treatment is recovery, stabilization of functioning and establishment of a recovery-oriented lifestyle;
16.1.4.b. Detoxification from opioids or other substances is a treatment alternative to an ongoing, recovery-oriented plan of care, and that under the detoxification protocol:
16.1.4.b.1. The strength of maintenance doses of medication-assisted treatment medications should decrease over time, as clinically appropriate; and
16.1.4.b.2. The participant is required to work toward a recovery-oriented lifestyle.
16.1.4.c. At each review of the individualized treatment plan of care, in full consultation with the patient, the program will discuss present level of functioning, course of treatment and future long-term recovery goals; and
16.1.4.d. A patient may choose to withdraw from or be maintained on the medication as he or she desires, unless medically contraindicated.
16.2. Each MAT program shall inform every patient regarding legal requirements and program policies concerning the report of suspected child abuse and neglect as well as other forms of abuse, such as violence against women.
16.3. Each MAT program shall inform every patient as to federal confidentiality regulations, 42 C.F.R. Part 2, and the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936 (1996), as amended.
16.4. Each MAT program shall:
16.4.1. Promulgate and make available a written description of patient rights and responsibilities;
16.4.2. Follow due process procedures and observe any applicable medical protocols for any involuntary terminations of patients;
16.4.3. Ensure that family members of employees do not receive special privileges; and
16.4.4. Monitor credentialing of all staff to ensure that they maintain current credentials for performing their assigned job duties.
W. Va. Code R. § 71-27-17 Medication Security, Storage, Administration and Documentation
17.1. Medication Security.
17.1.1. Each MAT program shall develop and implement policies and procedures that comply with all relevant federal and state laws, rules and regulations regarding the storage and management of medications kept at the facility, if applicable, including measures that:
17.1.1.a. Ensure responsible handling and secure storage of all medications kept at the program;
17.1.1.b. Ensure responsible handling and secure storage of all medications kept at the program;
17.1.1.c. Ensure that only authorized personnel may access the storage areas where any medications are kept.
17.1.2. Each MAT program shall develop and implement policies and procedures that comply with all relevant federal and state laws, rules and regulations regarding the storage, management and disbursement of take-home medications. The policies and procedures shall include measures that:
17.1.2.a. Ensure responsible handling and secure storage of take-home medications in child-proof and tamper-resistant containers;
17.1.2.b. Require each patient to demonstrate the ability to provide secure storage for take-home medications; and
17.1.2.c. Inform patients of their rights and responsibilities in writing to ensure the security of medication-assisted treatment medications.
17.1.3. The MAT program shall establish and implement policies and procedures for monitoring medications to prevent diversion. The policies and procedures shall include random call backs of individuals with more than one week of take-home dosage, required program attendance, random drug screens and random medication counts.
17.1.3.a. All patients shall undergo random drug screens, as required in subdivision 34.2.4.a.
17.1.3.b. Frequency of call backs, random drug screens and medication counts shall be individually determined for each patient by the interdisciplinary team.
17.2. Each MAT program shall have policies and procedures consistent with the DEA’s statutes and regulations regarding the storage, administration and documentation of medications, if applicable.
17.3. Administration of Medications.
17.3.1. The policies and procedures of a MAT program shall require all personnel dispensing medication-assisted treatment medications to adhere to federal and state laws, and substance tracking.
17.3.2. Each MAT program shall calibrate medication dispensing instruments consistent with the manufacturer’s recommendations to ensure accurate patient dosing, if applicable, and substance tracking.
17.3.3. Each MAT program shall ensure that medication-assisted treatment medications are administered or dispensed only by a practitioner who is qualified to do so by his or her scope of practice; is licensed under the appropriate state law; and is registered under the appropriate state and federal laws to administer or dispense medication-assisted treatment medications.
17.3.4. Only the program physician may order medication and dosages; only the program physician may approve changes in dosage or take-home privileges.
17.3.5. The patient shall be advised of any change in medication dosage or administration.
17.4. Each MAT program shall maintain current procedures adequate to ensure that all medication-assisted treatment medication is administered or dispensed in accordance with its approved product labeling. Dosing and administration decisions shall be made by a program physician familiar with the most up-to-date product labeling. The procedures must ensure that any significant deviations from the approved labeling, including deviations with regard to dose frequency or the conditions of use described in the approved labeling, are specifically documented in the patient’s record.
17.5. Documentation.
17.5.1. Each MAT program is responsible for proper documentation of medications stored, administered or dispensed.
17.5.2. Documentation of medication administered or dispensed requires, at a minimum, the following:
17.5.2.a. The signature or initials of the qualified person administering or dispensing medication;
17.5.2.b. The exact number of milligrams of the substance administered or dispensed; and
17.5.2.c. The daily totals of the substance administered or dispensed.
17.5.3. Each dosage administered or dispensed, prepared or received shall be recorded and accounted for by written signed notation in a manner that creates a perpetual and accurate inventory of all medication-assisted treatment medications in stock at all times.
17.5.4. The medication shall be totaled in milligrams daily.
17.5.5. Each medication order and dosage change shall be written on an acceptable order sheet and signed and dated by only the program physician. If initials are used, the full signature of the qualified person administering or dispensing shall appear at the end of each page of the medication sheet.
17.5.6. At the time any medication is administered or dispensed, each dose shall be recorded on an administration sheet; in the patient’s individual medication dose history included in the patient’s individualized treatment plan of care and patient chart; and in the inventory control program used by the facility to monitor and ensure an accurate inventory of all medication on the premises.
17.6. Patient Meetings and Screenings.
17.6.1. Each MAT program shall have the capability of obtaining medication levels clinically indicated, through random drug screening of all patients and at least on a required monthly basis.
17.6.2. The program physician or physician extender shall meet with each patient prior to prescribing the initial dose of medication and perform an initial medical and drug screening. All patients must undergo comprehensive monthly drug screenings, which shall include testing for controlled substances, including the substance prescribed by the program.
17.6.3. During the first month of treatment, the program physician or physician extender shall meet individually with the patient at least once per week to discuss dosage and symptoms. The weekly meetings shall occur until the dosage is considered stable by the patient and the physician. Thereafter, the program physician or approved physician extender shall meet with the patient at least annually to discuss the possibility of consideration of titration of medications.
17.6.4. All meetings, test results and discussions shall be documented in the patient’s chart and individualized treatment plan of care, along with the individual’s decision whether to continue medications at current levels or to begin a slow titration process.
17.7. Approved Medications.
17.7.1. A MAT program shall use only those medication-assisted treatment medications that are approved by the Food and Drug Administration under section 505 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 355, for use in the treatment of substance use disorders.
17.7.2. The state opioid treatment authority is responsible for reviewing, monitoring, and approving, when applicable, practice guidelines for alternative treatments as they become available. The guidelines shall be in conformance with any nationally recognized guidelines approved by the Director. The MAT program is responsible for remaining in conformity with practice guidelines as issued or approved by the state opioid treatment authority.
17.8. Dosage.
17.8.1. Each MAT program shall have a procedure through which the patient can discuss dosages of medication he or she receives with appropriate staff members regularly and upon request. This procedure shall be clearly described to the patient during orientation, upon admission and at least annually thereafter. A written explanation of the dosing procedures shall be initialed and dated by the patient and maintained in the patient chart and individualized treatment plan of care.
17.8.2. The maintenance dose of medication prescribed for a patient shall be individually determined in accordance with federal law and guidelines and protocols from approved authorities. Adjustments upward or downward in dosage shall not be made either as punishment or reward, but shall be justified by the clinical documentation of the patient’s condition, subjectively and objectively, in accordance with the approved guidelines and protocols.
17.8.3. The initial full-day dose of medication shall be based on the physician’s evaluation of the history and condition of the patient and made in accordance with established guidelines. Doses shall be sufficient to produce the desired response in the patient for the desired duration of time, with allowance for a margin of effectiveness and safety.
17.8.4. Dosage administration and adjustment shall be guided by outcomes criteria, which shall be documented and include:
17.8.4.a. Cessation of withdrawal symptoms;
17.8.4.b. Cessation of illicit opioid use as documented by negative drug tests and reduction of drug-seeking behavior;
17.8.4.c. Establishment of a blockade dose of an agonist;
17.8.4.d. Absence of problematic craving as documented by a subjective report and clinical observations; and
17.8.4.e. Absence of signs and symptoms of too large a dose of a medication-assisted treatment medication after an interval adequate for the patient to develop complete tolerance to the blocking dose.
17.8.5. Dosages of medication should be adjusted so that they shall ultimately;
17.8.5.a. Prevent the onset of subjective and objective signs of opioid or substance abstinence syndrome for 24 hours or more;
17.8.5.b. Reduce or eliminate drug cravings; and
17.8.5.c. Block the effects of illicitly acquired opioids without inducing persistent euphoric or other undesirable effects.
17.8.6. The ordering physician shall ensure that the justification for daily doses above 100 milligrams is documented in the patient’s record.
17.9. All prescriptions for medication-assisted treatment medications may be issued by electronic prescribing, whenever possible.
17.10. Prescriptions for medication-assisted treatment medications shall include full identifying information for the patient, including full name and physical address; diagnosis code for which the medication is being prescribed; drug name, strength, dosage form, quantity and directions for use; the MAT program’s license number; and the prescribing program physician’s regular DEA number and DATA 2000 identification number, if applicable.
17.11. The program shall check the Controlled Substances Monitoring Program database upon admission of the patient, at least quarterly to determine if controlled substances other than those prescribed medication-assisted treatment medications are being prescribed for the patient, and at each patient’s physical assessment. The patient’s record shall include documentation of the check of the Controlled Substances Monitoring Program database and the date upon which it occurred.
17.12. Methadone.
17.12.1. Methadone shall be administered only in oral form and shall be formulated in such a way as to reduce its potential for parenteral abuse and diversion.
17.12.2. For each new patient enrolled in an opioid treatment program, the initial dose of methadone shall not exceed 30 milligrams. The total dose for the first day shall not exceed 40 milligrams, unless the program physician documents in the patient’s record that 40 milligrams did not suppress opiate abstinence symptoms after a three-hour period of observation.
17.12.3. The total dose of methadone and the interval between doses may be adjusted for patients documented to have atypical metabolic patterns or those prescribed other concurrent medications which alter rates of methadone metabolism.
W. Va. Code R. § 71-27-18 Continuous Quality Improvement Policies, Diversion Control Plan
18.1. Each MAT program shall develop, implement and maintain current quality assurance and quality control plans that include provisions for:
18.1.1. Regular and continuous staff education;
18.1.2. An annual review, in consultation with the advisory council and the peer review committee of program policies and procedures;
18.1.3. A service delivery assessment which, at a minimum, shall evaluate appropriateness of the individualized treatment plan and services delivered, completeness of documentation in patients; records and quality of and participation in staff training programs, linkage to a utilization of primary care and other out-of-program services, and availability of services and medications for other conditions;
18.1.4. Consideration of ongoing input into program policies and procedures by patients regarding community concerns;
18.1.5. Development and implementation of annual patient satisfaction surveys that include a review of patient satisfaction;
18.1.6. An ongoing assessment, measurement and monitoring of patient outcomes, treatment outcomes and the various processes including, but not limited to:
18.1.6.a. Reduction or elimination of the patient’s use of illicit opioids, illicit drugs and the problematic use of licit drugs;
18.1.6.b. Reduction or elimination of associated criminal activities;
18.1.6.c. Reduction of the patient’s behaviors contributing to the spread of infectious diseases;
18.1.6.d. Improvement of quality of life through the restoration of physical and behavioral health and functional status, including employment or volunteerism, as may be appropriate; and
18.1.6.e. Assessment of medication-related issues, including, but not limited to, take-home procedures, security, inventory and dosage issues.
18.2. The MAT program shall annually collect outcome measurements and results of patient satisfaction surveys. The governing body and the advisory council shall review the results and submit the reports to the state authority.
18.3. Each MAT program shall participate in additional quality improvement outcome studies as directed by the designated state oversight authority.
18.4. A MAT program shall maintain a current “Diversion Control Plan” (DCP) as part of its quality assurance programs that contains specific measures to reduce the possibility of diversion of controlled substances from legitimate treatment use. The DCP shall assign specific responsibility to the medical and administrative staff of the MAT program for carrying out of the diversion control measures and functions described in the DCP.
18.4.1. The DCP shall be reviewed and approved by the governing body, advisory council and peer review council and the state opioid treatment authority.
18.4.2. The DCP shall minimize the diversion of methadone, in all forms, or other medication-assisted treatment medications to illicit use. The plan shall include:
18.4.2.a. Continuous clinical and administrative monitoring of the potential for and actual diversion including an investigation, tracking and monitoring system of incidents of diversion; and
18.4.2.b. Proactive planning and procedures for problem identification, correction and prevention.
18.4.3. The DCP shall contain, at a minimum, a random call-back program with mandatory compliance, which shall be in addition to the regular schedule of program visits.
18.4.3.a. Each patient receiving three or more consecutive doses of unsupervised or take-home medications shall be called back randomly within the 90-day period immediately following the previous call-back.
18.4.3.b. Upon call-back, a patient shall report to the program within 24 hours of notification, or sooner if directed by the physician, with all take-home medications. The quantity and integrity of packaging shall be verified for all doses. If a take-home dose shows evidence of tampering, the program shall impose uniform sanctions for violating take-home policies, including sanctions for a patient’s tampering with a take-home dose, if applicable.
18.4.3.c. Patients shall be informed of consequences for violating the take-home policy.
18.4.3.d. The program shall maintain individual call-back results in the patient record and individualized treatment plan.
W. Va. Code R. § 71-27-19 Patient Rights
19.1. Each MAT program shall develop and implement policies and procedures which guarantee the following rights to patients:
19.1.1. To be informed, both verbally and in writing, of program rules and regulations and patient’s rights and responsibilities. The rights and responsibilities shall be posted prominently and reviewed with the patient at admission, at the end of a stabilization period, at the time of an annual treatment review and at any time that changes in the rights and responsibilities occur;
19.1.2. To receive treatment provided in a fair and impartial manner free from unlawful discriminatory practices pursuant to W. Va. Code §16B-17-9.
19.1.3. To receive an individualized treatment plan of care developed according to guidelines established by a nationally recognized authority and approved by the Director. The individualized treatment plan of care shall include a recovery model, shall be reviewed periodically by the interdisciplinary team, and shall be maintained in the patient’s chart;
19.1.4. To receive medications required by the individualized treatment plan of care on a schedule developed in accordance with applicable federal requirements and approved guidelines and protocols and that is the most accommodating and least intrusive and disruptive method of treatment for most patients;
19.1.5. To be informed that random drug testing of all patients shall be conducted during the course of treatment as required by subdivision 34.2.4.a., and that any refusal to participate in a random drug test shall be considered a positive test. The patient shall be informed of the consequences of having a positive drug screen result;
19.1.6. To be entitled to participate in a MAT program that provides an adequate number of competent, qualified and experienced professional staff to implement and supervise the individualized treatment plan of care;
19.1.7. To be informed about potential interactions with and adverse reactions to other substances, including alcohol , other prescribed medications, over-the-counter pharmacological agents, other medical procedures, and food;
19.1.8. To be informed about the financial aspects of treatment, including the consequences of nonpayment of required fees;
19.1.9. To be given a copy of the initial assessment, written acceptance into the program; or, in the case of denial of admission, a full explanation as to the basis of the denial, and a referral to another MAT program based upon the results of the initial assessment;
19.1.10. To confidentiality in accordance with federal regulations, 42 C.F.R. Part 2, and the Health Insurance Portability and Accountability Act of 1996, as amended;
19.1.11. To be informed of the extent of confidentiality, including the conditions under which information can be released without consent, the use of identifying information for the purposes of program evaluation, billing and statutory requirements for reporting abuse;
19.1.12. To give informed consent prior to being involved in research projects and the right to retain a copy of the informed consent form;
19.1.13. To full disclosure of information about treatment and medication, including accommodation for those who do not speak English, or who are otherwise unable to read an informed consent form; and
19.1.14. The patient, as well as the staff and the public, are entitled to protection from other patients who act out. The program shall attempt to determine the cause of that behavior so that an appropriate referral to an alternative method of care can be made.
19.2. The MAT program shall have patient grievance procedures which shall be displayed in the patient care area in a conspicuous place and easily available to patients. They should include program rules, consequences of noncompliance and procedures for filing a complaint or grievance. The procedures shall inform the patients of the following:
19.2.1. The right of a patient to express verbally or in writing his or her dissatisfaction with or complaints about treatment received;
19.2.2. The right of a patient to initiate grievance procedures without fear of reprisal;
19.2.3. The right of a patient to be informed of the grievance procedure in a manner that can be understood by the patient; and
19.2.4. The right of a patient to receive a decision in writing with the reasoning articulated.
19.3. Administrative withdrawal shall be used only as a sanction of last resort. It is the responsibility of the program to make every attempt before a patient is discharged to accommodate the patient’s desire to be referred to an alternative treatment program as appropriate.
W. Va. Code R. § 71-27-20 Patient Records
20.1. Each MAT program shall establish and maintain a recordkeeping system that is adequate to document and monitor patient care. The system shall comply with all federal and state reporting requirements relevant to opioid medication approved for use in treatment of substance use disorder.
20.2. All patient records shall be maintained for a minimum of five years from the time that the documented treatment is provided. In the event a patient is a juvenile, the records shall be kept for a minimum of five years from the time the patient reaches the age of 18.
20.3. All patient records shall be kept confidential in accordance with all applicable federal and state requirements.
20.4. All patient records shall be updated in a timely manner.
20.5. Information in the patient medical records shall be entered by designated program staff and approved by the program physician. Entries shall be legible and organized in an effective manner, allowing materials to be easily retrieved.
20.6. MAT program policies and procedures should ensure security of all records including electronic records, if any.
20.7. Individual patient records shall contain:
20.7.1. Identifying and basic demographic data and the results of the screening process;
20.7.2. Documentation of program compliance with the program’s policy regarding prevention of multiple admissions;
20.7.3. An initial assessment report;
20.7.4. A narrative biopsychosocial history;
20.7.5. All physical and biopsychosocial assessments;
20.7.6. Medical reports including results of the physical assessment; family medical history; review of systems; laboratory reports, including results of required drug screens; results obtained from the Controlled Substances Monitoring Program database; and progress notes, including documentation of current dose and other dosage data;
20.7.7. Dated case entries of all significant contacts with patients, including a record of each counseling session in chronological order;
20.7.8. Dates and results of case conferences for patients;
20.7.9. The initial and post-admission individualized treatment plan of care, and any amendments, reviews or changes to the plans;
20.7.10. Documentation that the services listed in the individualized treatment plan of care are available and have been provided or offered;
20.7.11. A written report of the treatment process; factors considered in decisions impacting patient treatment, e.g., take-home medication privileges, changes in counseling sessions, changes in frequency of drug screens; results from the Controlled Substances Monitoring Program database; documentation of whether the patient was offered or accepted a detoxification treatment plan option; and any other significant change in treatment, both positive and negative;
20.7.12. Coordination of care agreements signed by the patient, program physician and primary counselor;
20.7.13. Documentation that the MAT program made a good faith effort to review whether the patient is enrolled in any other MAT program;
20.7.14. A record of correspondence with the patient, family members and other individuals and a record of each referral for services and its results;
20.7.15. A record of correspondence with other health care providers of the patient;
20.7.16. Documentation that the patient was provided with a copy of the program’s rules and regulations; a copy of the patient’s rights and responsibilities; a copy of the detoxification treatment plan option, if applicable; a copy of the patient’s individualized treatment plan of care; a copy of the patient’s goals; and documentation that each of these items was discussed with the patient;
20.7.17. Consent forms, releases of information, prescription documentation, travel, employment and take-home documentation; and
20.7.18. A closing summary, including reasons for discharge and any referral. In the case of death, the cause of death, if known, shall be documented.
20.8. Documentation of Patient Contact.
20.8.1. The primary counselor or medical staff is responsible for documentation of significant contact with each patient, which shall be filed in the patient record and include a description of:
20.8.1.a. The reason for or nature of the contact;
20.8.1.b. The patient’s current condition;
20.8.1.c. Significant events occurring since prior contact;
20.8.1.d. The assessment of patient status; and
20.8.1.e. A plan for action or further treatment.
20.8.2. Each entry shall be completed by the next business day following the contact and shall be clearly dated and initialed or signed by the staff person involved.
20.9. A MAT program that closes or discontinues MAT program services shall arrange for continued management of all patient records as follows:
20.9.1. Within 10 days of closure, the owner of the MAT program shall notify the Director, or his or her designee, in writing of the address where records will be stored and specify the individual who will be managing records and that individual’s contact information.
20.9.2. The owner of the MAT program shall arrange for the storage of each record through one or more of the following measures:
20.9.2.a. The owner of the MAT program shall continue to manage the records and give written assurance to the Director or his or her designee that it will respond to authorized requests for copies of patient records within 10 working days;
20.9.2.b. The owner of the MAT program shall transfer records of patients who have given written consent to another MAT program within five days of the request; or
20.9.2.c. The owner of the MAT program will enter into an agreement with another MAT program to store and manage the patient records.
W. Va. Code R. § 71-27-21 Pre-Admission Assessment; Admission Criteria and Admission Process
21.1. Each MAT program shall develop, implement and maintain policies and procedures designed to ensure that patients are admitted to maintenance treatment only after assessment by qualified personnel who have determined that the person meets the qualifications for admission.
21.2. Any individual seeking admittance to the MAT program shall undergo a pre-admission initial assessment in order to determine whether the person meets the criteria for admission to a MAT program. The initial assessment, consisting of a physical assessment and an intake screening, shall be conducted by the medical director, an approved program physician or a supervised physician extender. The initial assessment shall focus on the individual’s eligibility and need for treatment and shall provide indicators for initial dosage level, if required and if admission is determined appropriate. The determination of admission eligibility shall be made using accepted medical criteria such as those listed in the latest approved version of the Diagnostic and Statistical Manual for Mental Disorders.
21.3. The initial physical assessment shall include documentation of:
21.3.1. A brief physical examination;
21.3.2. The patient’s immediately relevant history, including, but not limited to, determination of chronic or acute medical conditions such as diabetes, renal disease, hepatitis, sickle cell anemia, tuberculosis, human immunodeficiency virus (HIV) exposure, sexually transmitted disease, chronic cardiopulmonary disease and pregnancy;
21.3.3. A determination of currently prescribed medication or utilized over-the-counter substances;
21.3.4. An evaluation of the patient’s use of other substances of abuse and alcohol;
21.3.5. Determination of current substance use disorder;
21.3.6. Determination of length of substance use disorder;
21.3.7. An initial drug test and full drug screen to identify whether the patient is using other drugs, including opiates, methadone, buprenorphine, amphetamines, cocaine, barbiturates, benzodiazepines, marijuana or other drugs or substances as determined by community standards, regional variation or clinical indication, such as carisoprodol; to determine whether the individual has a substance use disorder from another MAT program;
21.3.8. An inquiry to and report from the Controlled Substances Monitoring Program database;
21.3.9. An inquiry whether the patient is enrolled in any other MAT program;
21.3.10. Identify comorbid medical and psychiatric conditions or disorders and to determine how, when and where they will be addressed;
21.3.11. Screen for communicable diseases and address them as needed and evaluate patient’s level of physical, psychological and social functioning or impairment;
21.3.12. Assess the individual’s access to social supports, family, friends, employment, housing, finances and whether any legal problems exist; and
21.3.13. Determine the patient’s readiness to participate in treatment.
21.4. The individual desiring admission for treatment through the use of a medication-assisted treatment medication must be at least 18 years of age. Exceptions may be made on extremely rare occasions with parental consent and by application of the treating physician to the state opioid treatment authority.
21.5. All admissions shall include documentation regarding medical necessity and program eligibility for medication-assisted treatment that includes:
21.5.1. Objective evidence, such as a positive drug test, of current physical dependence or tolerance to opioids or methadone; or
21.5.2. Objective symptoms of withdrawal, with documentation of the signs and symptoms of withdrawal, or both; or
21.5.3. Evidence from the patient of the following:
21.5.3.a. Onset of opioid physical dependence prior to admission with continuous use the greater part of the year; and
21.5.3.b. Multiple or daily self-administration of an opioid, or both.
21.6. The following behavioral signs which support the diagnosis of substance use disorder shall be discussed and documented, although none are considered required for admission:
21.6.1. Unsuccessful efforts to control use;
21.6.2. Time spent obtaining drugs or recovering from the effects of abuse;
21.6.3. Continual use despite harmful consequences;
21.6.4. Obtaining opiates illegally;
21.6.5. Inappropriate use of prescribed opiates;
21.6.6. Giving up or reducing important social, occupational or recreational activities;
21.6.7. Continuing use of the opiate despite known adverse consequences to self, family or society; and
21.6.8. One or more unsuccessful attempts at gradual removal of physical dependence on opioids or detoxification using methadone, buprenorphine or other appropriate medications.
21.7. The absence of physiological dependence should not be an exclusion criterion, and admission may be clinically justified. The initial assessment may recognize that individuals in some populations may be susceptible to relapse to substance use disorder, leading to high-risk behaviors with potentially life-threatening consequences.
21.8. After thorough review of the information acquired through the initial assessment, an individual may be admitted to the MAT program if, using accepted medical criteria, a determination is made that one or more of the following factors is met:
21.8.1. The individual has a positive drug test for either opioids or methadone;
21.8.2. There are objective symptoms of withdrawal, or both; or
21.8.3. There is objective evidence that the individual qualifies under the provisions of section 21.9. of this rule.
21.9. Admission to the MAT program may be allowed to the following groups with a high risk of relapse without the necessity of a positive drug test or the presence of objective symptoms:
21.9.1. The individual is a pregnant woman with a history of substance use disorder;
21.9.2. The individual is a prisoner or has been released from a correctional facility within six months;
21.9.3. The individual is a former program patient who successfully completed treatment but believes that he or she is at risk of imminent relapse; or
21.9.4. The individual has been deemed as high risk by the medical director or treating physician.
21.10. A patient enrolled in a MAT program shall not be permitted to obtain treatment in any other MAT program except in exceptional circumstances and as provided in section 30.14. of these rules.
21.11. The admission and initial dosing of the patient may take place only after the patient is seen by a program physician, or an experienced medical professional working within the scope of his or her license who:
21.11.1. Has consulted by telephone or in person with the program physician;
21.11.2. Is approved by the medical director; and
21.11.3. Has completed a plan of education and development.
21.12. Whenever possible, the patient shall be admitted only after observation by and an interview with the program physician. Under unusual circumstances, an experienced medical professional working within the scope of his or her license may conduct the interview and observation and obtain telephone or fax orders from the physician to initiate treatment. Any patient admitted under those circumstances must be seen by the program physician within three working days of admission for verification of appropriate admission and treatment. All unusual circumstances and their outcomes shall be reviewed by the admissions committee.
21.13. The program physician or physician extender shall review the accumulated data directly with the individual and confirm a diagnosis of substance use disorder of sufficient severity to warrant admission to the MAT program. The program physician shall document that treatment is medically necessary. The admission and initial dosing decisions ultimately rest with the medical director or the designated program physician.
21.14. The program physician shall ensure that each patient voluntarily chooses maintenance treatment and that all relevant facts concerning the use of medication-assisted treatment medications are clearly and adequately explained to the patient. The program physician shall ensure that each newly admitted patient provides informed written consent to treatment.
21.15. Every individual shall be given the opportunity to enter into a detoxification program and shall be fully informed of the protocol, goals and procedures for detoxification. The individual shall specifically consent to participation in the detoxification program in writing. The consent form shall be maintained in the patient chart and with the patient’s individualized treatment plan of care.
21.16. Admission of individuals with no opioid tolerance shall require careful monitoring and documentation during the induction phase of treatment.
21.17. The physician or physician extender and patient shall each sign and date the verification that the initial assessment and review occurred and that the patient received all applicable information, policies and procedures.
21.18. Exceptions to admission policy shall be reviewed and tracked by the admissions committee and be made available to regulatory bodies.
21.19. If a patient was previously discharged from treatment at another program, the admitting MAT program with patient consent shall contact the previous MAT program or programs from treatment history.
21.20. Non-admissions. The program shall maintain written logs that identify persons who were considered for admission or initially screened for admission but were not admitted. This log shall identify the reasons why the individuals were not admitted and what referrals were made for them by the program.
21.21. Patient Transfers.
21.21.1. MAT programs shall accept patients transferring from another MAT program within the State of West Virginia, if:
21.21.1.a. The MAT program accepting a patient voluntarily transferring from another MAT program shall provide documentation that the patient’s medical record and reasons for the transfer was sought from the patient’s previous MAT program; and
21.21.1.b. The patient is in compliance with readmission policies for patients who have been administratively detoxified.
21.21.2. In order for the patient to transfer to another MAT program, the following requirements shall be met:
21.21.2.a. The MAT program that the patient is leaving shall forward all relevant patient records to the MAT program where the patient is transferring; and
21.21.2.b. The MAT program shall provide documentation that the patient’s medical record and reason for transfer was sought from the patient’s previous MAT program and shall meet the admission criteria of this rule.
21.21.3. Patients who are West Virginia residents and wish to transfer to another West Virginia-based program shall be reviewed by the new program’s admission program physician or medical director on an individual basis to determine their placement on the receiving program’s patient listing. The review shall determine the patient’s need, program placement availability and the circumstances for the transfer request.
21.21.4. Patients who are not West Virginia residents shall transfer to a West Virginia program as a new admission in accordance with this rule.
W. Va. Code R. § 71-27-22 Multiple Program Enrollments
22.1. A patient enrolled in a MAT program shall not be permitted to obtain treatment in any other MAT program except in exceptional circumstances.
22.1.1. If the medical director or program physician of the MAT program in which the patient is enrolled determines that an exceptional circumstance exists, the patient may be granted permission to seek treatment at another MAT program.
22.1.2. The justification for finding exceptional circumstances shall be noted in the patient’s individualized treatment plan of care and medical chart both at the MAT program in which the patient is enrolled and at the MAT program that provides the additional treatment.
22.2. When practicable, the MAT program shall obtain a written consent for release of information from the patient in order to check the records of every OTP program within 100 miles of the program site so as to ensure that the patient is not currently enrolled in those programs as well. The request for information may be made by telephone, fax or e-mail. The release of information shall state that only prior admissions may be the subject of inquiry, not contacts without admission. The MAT program shall protect patient confidentiality at all times and with all procedures used in acquiring medical or health information.
22.3. Results of the multiple-program check shall be contained in the clinical record, the patient chart and the individualized treatment plan of care.
22.4. A multiple program enrollment check shall be repeated if the patient is discharged and readmitted at any time.
W. Va. Code R. § 71-27-23 Controlled Substances Monitoring Program Database
23.1. Each MAT program shall comply with policies and procedures developed by the designated state oversight agency and the West Virginia Board of Pharmacy to allow physicians treating patients through a MAT program access to the Controlled Substances Monitoring Program database maintained by the West Virginia Boar of Pharmacy.
23.2. The program physician shall access the Controlled Substances Monitoring Program database in order to ensure that the patient is not seeking prescription medication from multiple sources. The results obtained from the database shall be maintained with the patient records.
23.3. Program physicians shall access the database:
23.3.1. At the patient’s intake;
23.3.2. Before the administration of medication-assisted treatment medications or other treatment in a MAT program;
23.3.3. After the initial 30 days of treatment;
23.3.4. Prior to any take-home medication being granted, if applicable;
23.3.5. After any positive drug test; and
23.3.6. At each 90-dat treatment review.
W. Va. Code R. § 71-27-24 Orientation
24.1. Every person admitted to a MAT program shall receive program orientation. The orientation shall be made verbally at the earliest opportunity at which the patient is stable and capable of understanding and retaining the information presented. Information provided in the orientation shall be given to the patient in writing at the time the decision is made to admit the patient, regardless of his or her condition, and shall include a formal agreement of informed consent to be signed by the patient.
24.2. Orientation shall include the following:
24.2.1. An explanation of the rights and responsibilities of the patient.
24.2.2. An explanation of the patient’s right to file a grievance and applicable appeal procedures.
24.2.3. An explanation of the services and activities provided by the MAT program, either onsite or by referral, including:
24.2.3.a. Expectations and rules;
24.2.3.b. Hours of operation;
24.2.3.c. Access to after-hours services;
24.2.3.d. Confidentiality policy;
24.2.3.e. Drug screening and random drug-testing policies;
24.2.3.f. Sanctions, restrictions and other penalties;
24.2.3.g. Interventions;
24.2.3.h. Incentives; and
24.2.3.i. Various discharge criteria, including, but not limited to, administrative and medical withdrawal policies and procedures.
24.2.4. An explanation about obtaining reports from the Controlled Substances Monitoring Program database; how the reports are used to treat and monitor the patient and the requirement that the reports be maintained in the patient files.
24.2.5. An explanation of any and all financial obligations of the patient; all fees charged by the MAT program; and any financial arrangements for services provided by the MAT program, including the requirements stated in W. Va. Code §16B-13-5(e).
24.2.6. Familiarization with the MAT program facility and premises.
24.2.7. A description of the MAT program’s policies regarding:
24.2.7.a. Use of alcohol on or prior to entering the facility and premises;
24.2.7.b. Smoking;
24.2.7.c. Illicit or licit drugs brought into the program or onto the premises; and
24.2.7.d. Weapons brought into the program or onto the premises.
24.2.8. Identification of the counselor assigned to the patient and contact information for that counselor.
24.2.9. A copy of the MAT program rules identifying the following:
24.2.9.a. Any restrictions the program may place on the patient;
24.2.9.b. Events, behaviors or attitudes that may lead to the loss of rights or privileges for the patient; and
24.2.9.c. Means by which the patient may regain rights or privileges that have been restricted;
24.2.10. An explanation of the purpose and process of the initial and subsequent physical and biopsychosocial assessments;
24.2.11. A description of how the individualized treatment plan of care and coordination of care agreement will be developed and the patient’s expected participation in the plan of care; and
24.2.12. An explanation of alternative methods that are available for treatment of substance use disorder, whether offered by the program or not, and the potential benefits and risks.
24.3. Upon admission, each patient shall receive the following written information:
24.3.1. Signs and symptoms of overdose and when, where and how to seek emergency assistance;
24.3.2. A formal agreement of informed consent to be signed by the patient;
24.3.3. A signed copy the coordination of care agreement;
24.3.4. Patient’s rights;
24.3.5. Confidentiality policies;
24.3.6. The program’s processes for dispensing medication; and
24.3.7. Information on alternative methods available for treatment of substance use disorder and the potential benefits and risks. The state opioid treatment authority is responsible for providing informational materials to be used in discussing alternative treatments.
24.4. As soon as the patient is stable and capable of understanding, the patient shall receive group or individual education on the following:
24.4.1. Medication administration, including methods of dispensing and dosage restrictions;
24.4.2. The nature of substance use disorder including the great likelihood that substance use disorder is a relapsing disease and is likely to have grave medical and social consequences if not treated on an ongoing basis;
24.4.3. The anticipated benefits of treatment;
24.4.4. The nature of the recovery process;
24.4.5. HIV spectrum and other infectious diseases;
24.4.6. Potential drug interactions;
24.4.7. Self-help groups;
24.4.8. Medical issues related to detoxification from medication-assisted treatment medications;
24.4.9. The special risk of withdrawal from the medication-assisted treatment medication prescribed to the individual patient and detoxification to pregnant women and the fetus, as appropriate;
24.4.10. Characteristics of the medications administered or prescribed by the program;
24.4.11. Drug safety issues;
24.4.12. Dispensing procedures; and
24.4.13. Side effects of medications administered or prescribed by the program.
24.5. Documentation that the patient has completed the orientation training shall be completed and signed by the patient and maintained in the patient’s chart and individualized treatment plan of care.
W. Va. Code R. § 71-27-25 Required Services
25.1. Each MAT program shall provide adequate medical, counseling, vocational, educational, recovery and other assessment and treatment services. These services must be available onsite at the facility or on a referral basis to outside providers and the program sponsor or administrator must be able to document that these services are fully and reasonably available to patients and comply with all federal and state laws, rules and regulations.
25.2. Each MAT program shall require every patient to undergo a documented physical assessment by a program physician or a physician extender under the supervision of a program physician, before admission to the MAT program. The medical assessment shall be completed at the time of admission and prior to the first dose of medication-assisted treatment medication. The results of serology, drug screens and other tests must be completed within 14 days following admission.
25.3. Each MAT program shall require every patient to undergo a documented biopsychosocial assessment by a program counselor before admission to the MAT program. The biopsychosocial assessment shall be completed at the time of admission and prior to the first dose of medication-assisted treatment medication.
25.4. Each patient accepted for treatment at a MAT program shall be assessed initially and at least every 90 days following the initial assessment by qualified personnel who shall determine the most appropriate combination of recovery-oriented services and treatment for the patient.
25.5. Within seven days of the admission of a patient, the MAT program shall complete a post-admission initial assessment, an initial individualized treatment plan of care and a coordination of care agreement.
25.6. Random drug testing of all patients shall be conducted during the course of treatment as required in subdivision 34.2.4.a. Each MAT program must provide adequate testing or analysis for drugs of abuse in accordance with generally accepted clinical practice.
25.7. Each MAT program must provide adequate substance use disorder counseling to each patient as clinically necessary and at the minimum levels as required by section 26.8. of this rule. Counseling shall be provided by a program counselor, qualified by education, training or experience to assess the psychological and sociological background of patients, to contribute to the appropriate individualized treatment plan of care for the patient and to monitor patient progress.
25.8. Each MAT program shall maintain current policies and procedures that reflect the special needs of patients who are pregnant. Prenatal care and other gender-specific services of pregnant patients must be provided either by the MAT program or by referral to appropriate health care providers. Services rendered to pregnant patients shall comply with the requirements of section 35.5. of this rule.
25.9. Each MAT program shall provide counseling on preventing exposure to, and the transmission of, HIV and hepatitis C for each patient admitted or re-admitted to maintenance or detoxification treatment. Services rendered to patients with HIV disease shall comply with the requirements of section 35.3. of this rule.
25.10. Each MAT program that provides required services by referral or other agreement at offsite facilities or providers shall:
25.10.1. Establish a strong working relationship with several treatment providers offering different levels of treatment;
25.10.2. Be able to document a referral or other agreement with a local hospital, health care facility or other provider offsite services for the MAT program;
25.10.3. Review psychosocial treatment expectations and responsibilities with the patient;
25.10.4. Obtain signed consent form from each patient to approve open communication with the offsite provider and the MAT program; and
25.10.5. Routinely provide and obtain updates from offsite providers to consistently monitor treatment attendance and progress.
25.11. Services provided by a MAT program should adhere to recovery initiatives promoted by federal and state laws, rules and regulations and the protocols and guidelines of approved authorities. Recovery initiatives include assistance in overcoming or managing a patient’s substance use disorder or other diseases; encouraging a patient to live in a physically and emotionally healthy manner; ensuring that the patient lives in a stable and safe place; engaging the patient in meaningful daily activities, such as job, school, volunteerism, family caretaking or creative endeavors; and assisting the patient in obtaining the independence, income and resources to participate in society and in developing relationships and supportive social networks.
W. Va. Code R. § 71-27-26 Counseling
26.1. Each MAT program shall provide substance use disorder counseling to every patient as is clinically appropriate. Counseling sessions should encourage and guide the patient to a lifestyle that does not include abuse or misuse of prescribed and illicit medications, drugs or other substances. Counseling sessions are essential to promote and guide the patient to a more productive lifestyle of abstinence from illicit medications or drugs.
26.2. The counseling shall be provided by a counselor or other professional as described in this rule, qualified by education or training to assess the psychological and sociological background of patients, to contribute to the appropriate individualized treatment plan for the patient, and to monitor patient progress. The primary counselor shall develop and implement the psychological and social portions of the patient’s individualized treatment plan of care, in coordination with the medical staff and program physician. The individualized treatment plan of care shall address the social, environmental, psychological, social and familial issues relative to recognizing, correcting and eliminating the individual’s maladaptive patterns of drug consumption and other high risk or destructive behaviors.
26.3. The primary counselor is responsible for assisting the patient in altering lifestyles and patterns of behavior in order to improve the individual’s ability to function adaptively in his or her family and community. Counseling shall address the social, environmental, psychological and familial issues that contribute to the individual’s maladaptive patterns of drug consumption and other high risk or destructive behaviors.
26.4. Each MAT program shall provide counseling on matters indirectly related to substance use disorder, including, but not limited to:
26.4.1. Preventing exposure to, and the transmission of, HIV and hepatitis C for each patient admitted or readmitted to maintenance or detoxification treatment; and
26.4.2. Domestic violence, sexual abuse and anger management.
26.5. Each MAT program shall develop and implement policies and procedures which ensure that single sex groups or same sex counselors will be available to all patients, as needed and clinically indicated.
26.6. Each MAT program must provide directly, or through referral to adequate and reasonably accessible community resources, vocational rehabilitation, education and employment services for patients who either request such services or who have been determined by the program staff to be in need of such services.
26.7. The clinical staff caseload ratio, as prescribed in subsection 8.6.3., shall:
26.7.1. Reflect an appropriate clinical mix of gender, race and ethnicity representative of the population served;
26.7.2. Allow the program to provide adequate psychosocial assessments, treatment planning and individualized counseling;
26.7.3. Allow for regularly scheduled, documented individual counseling sessions, as clinically indicated; and
26.7.4. Allow patients access to their primary counselor if more frequent contact is merited by need or is requested by the patient.
26.8. Counseling sessions, which may be accomplished via telehealth, shall be provided according to generally accepted best practices and shall be offered:
26.8.1. At least twice weekly during the first 30 days of treatment;
26.8.2. At least weekly during the next 90 days of treatment;
26.8.3. At least twice per month during the remainder of the first year of treatment; and
26.8.4. Thereafter, for subsequent 90-day periods of treatment, counseling sessions shall take place as needed or indicated in the patient’s individualized treatment plan of care, but not less frequently than monthly as long as the patient is compliant.
26.9. The counseling program shall provide for mandatory and documented weekly counseling of any patient who has a positive drug test and is required by this rule to undergo additional counseling. The counseling sessions shall be no less than 30 minutes to a patient with a counselor or other professional as described in subsection 8.6.1., whichever is applicable, of this rule who is licensed, certified or enrolled in the process of obtaining licensure, registration or certification. The mandatory counseling sessions may consist of group counseling sessions. However, the patient must attend at least one individual, private session per month.
26.10. Exceptions to frequency of counselor-to-patient contact shall be clearly justified by program documentation. The program physician evaluating the patient’s eligibility for take-home doses shall carefully consider the patient’s participation in the counseling sessions and the patient’s current phase in treatment as factors in the decision. A justified lack of participation, such as for reasons of employment, shall not be held against the patient in the take-home decision.
26.11. All counseling sessions shall be contained in the MAT program’s patient record and shall include documentation of the following:
26.11.1. The reason for or nature of the contact;
26.11.2. The patient’s current condition;
26.11.3. Significant events occurring since the prior contact;
26.11.4. The assessment of the patient’s status; and
26.11.5. A plan for action or further treatment that addresses the goals of the individualized treatment plan of care.
26.12. Upon completion of each counseling session, documentation shall be made within 72 hours of the contact and shall be clearly dated and initialed or signed the counselor providing the counseling session.
26.13. Counseling session opportunities for family or significant other involvement in counseling shall be provided and documented.
26.14. If counseling is not directly provided through the MAT program, the counselors shall still meet the credentialing requirements pursuant to this rule and verification of all sessions must be documented in the MAT patient record.
W. Va. Code R. § 71-27-27 Provision of Coordination of Patient Care; Post-Admission Assessment and Initial Plan of Care
27.1. Each MAT program shall develop, implement and maintain current policies and procedures, patient protocols, treatment plans and profiles for the treatment of patients seeking treatment for medication-assisted treatment.
27.2. Initial Post-Admission Assessments.
27.2.1. All patients undergo an initial post-admission assessment in order to determine the patient’s condition, diagnosis and treatment. The assessment shall be conducted by one or more program physicians.
27.2.2. Upon admission to a MAT program, each patient shall undergo an initial post-admission assessment and the MAT program shall develop an initial plan of care. The initial assessment and plan of care shall be completed within seven days of the patient’s admission.
27.2.3. The initial post-admission assessment shall consist of a medical assessment and include documentation of:
27.2.3.a. A physical assessment by a qualified medical professional within their scope of practice;
27.2.3.b. A psychiatric assessment, including mental status examination and psychiatric history;
27.2.3.c. A personal and family medical and health history;
27.2.3.d. All current medications, prescription or otherwise;
27.2.3.e. A comprehensive history of substance abuse, both personal and family;
27.2.3.f. Determination of current dependence on controlled substances;
27.2.3.g. A tuberculosis screening;
27.2.3.h. A screening test for syphilis;
27.2.3.i. A hepatitis C test;
27.2.3.j. An HIV test to the extent voluntarily elected by the patient;
27.2.3.k. An inquiry to and report from the Controlled Substances Monitoring Program database;
27.2.3.l. Laboratory tests;
27.2.3.m. A full drug screen;
27.2.3.n. An inquiry whether the patient is being treated at any other MAT program;
27.2.3.o. The diagnosis of all conditions, including a diagnosis of substance use disorder, including signs and symptoms;
27.2.3.p. A copy of the report by the referring physician and any medical records from other providers, if applicable;
27.2.3.q. The dates, amounts and dosage forms for any drugs prescribed, dispensed and administered; and
27.2.3.r. Other tests as necessary or appropriate, including, but not limited to, CBC, EKG, X-ray, pap smear, hepatitis B surface antigen and hepatitis B antibody testing.
27.2.4. A program physician or supervised physician extender shall perform a physical assessment of a patient on the same day that the program physician initially prescribes, dispenses or administers a medication-assisted treatment medication to a patient. If the patient continues to be treated for substance use disorder at the program, an assessment shall be performed at least every 90 days thereafter. All assessments shall be performed according to accepted and prevailing standards for medical care.
27.2.5. A repeat, full drug screen may be completed at 14 days after admission to identify whether the patient is using other drugs or substances, including, but not limited to, opiates, methadone, buprenorphine, amphetamines, cocaine, barbiturates, benzodiazepines and marijuana.
27.2.6. The initial post-admission assessment may include laboratory tests conducted by the MAT program or by other reliable sources.
27.2.6.a. Laboratory tests that are not directly conducted by the MAT program may be provided by the patient’s primary care physician, other health care providers or by a medical clinic.
27.2.6.b. The MAT program is responsible for obtaining and maintaining documentation of required laboratory tests performed by an alternative provider. Alternative providers may not supply drug screens unless they meet the required quality guidelines, content and timelines according to section 34 of this rule.
27.2.2.c. Tests not directly conducted by the MAT program at admission shall have been conducted within the 30 days prior to the admission in order to be considered a valid assessment of the patient.
27.3. Continued Post-Admission Assessments. Subsequent patient assessments shall include documentation of:
27.3.1. Follow-up physical assessments, by a program physician or a supervised physician extender;
27.3.2. The patient’s response to treatment;
27.3.3. Any modification to the plan of treatment;
27.3.4. The dates on which any medications were prescribed, dispensed or administered;
27.3.5. The amounts and dosage forms for any drugs prescribed, dispensed or administered;
27.3.6. Laboratory tests; and
27.3.7. Full drug screens.
27.4. Initial Plan of Care.
27.4.1. The treating program physician and other health care professionals, working within their scope of practice, directly involved in the care of the patient shall develop a written initial plan of care for every patient.
27.4.2. The initial plan of care shall include, at a minimum:
27.4.2.a. Information required for the initial assessment;
27.4.2.b. Documentation of the patient’s diagnoses, the proposed medical and medication-assisted treatment, medication dosages and administration;
27.4.2.c. Documentation of the patient’s current physical condition and whether the patient requires other health care services;
27.4.2.d. Laboratory test results;
27.4.2.e. Follow-up on any identified medical, physical or behavioral health issues;
27.4.2.f. Documentation of any education regarding the MAT program’s policies and procedures, substance use disorder or counseling sessions and resolution of other issues unique to the needs of the individual patient;
27.4.2.g. Such other information as recommended by the guidelines and treatment model utilized for the patient;
27.4.2.h. Specific goals and outcomes to improve or maintain the optimal health of the patient which are based on the assessment of the patient; and
27.4.2.i. A description of services and their frequency to be provided for the patient and primarily directed to achieve the expected goals and outcomes.
W. Va. Code R. § 71-27-28 Physical and Biopsychosocial Assessments
28.1. The program shall complete a physical and biopsychosocial evaluation, which shall be used to develop the long-term individualized treatment plan of care. The physical and biopsychosocial evaluations shall integrate information obtained in all treatment of the patient at the MAT program.
28.2. The physical and biopsychosocial evaluations shall include information obtained from:
28.2.1. The patient;
28.2.2. Family members, when applicable and permitted;
28.2.3. Friends and peers, when appropriate and permitted; and
28.2.4. Other appropriate and permitted collateral sources.
28.3. The physical assessment shall include information regarding the following:
28.3.1. A physical assessment;
28.3.2. An update to any immediate relevant history, including, but not limited to, the determination of chronic or acute medical conditions such as diabetes, renal disease, hepatitis, sickle cell anemia, tuberculosis, HIV exposure, sexually transmitted disease, chronic cardiopulmonary disease and pregnancy;
28.3.3. A determination of currently prescribed medications or utilized over-the-counter substances;
28.3.4. Medications prescribed that are not a target of treatment or concern;
28.3.5. Medication allergies or adverse reactions to medications;
28.3.6. A determination and evaluation of the patient’s use of other substances of abuse and alcohol;
28.3.7. A drug screen;
28.3.8. An inquiry to and report from the Controlled Substances Monitoring Program database;
28.3.9. An inquiry whether the patient is enrolled in any other MAT program; and
28.3.10. Screen for communicable diseases and address them as needed with treatment or referral and evaluate patient’s level of physical, psychological and social functioning or impairment.
28.4. The biopsychosocial assessment shall include information about the patient’s:
28.4.1. Personal strengths;
28.4.2. Individualized needs;
28.4.3. Abilities or interests;
28.4.4. Presenting problems, including a thorough analysis of the individual’s substance use disorders such as, licit and illicit drugs used, including alcohol; amounts of drugs or alcohol used; frequency of use; duration of use; symptoms of physical addiction; history of treatment for substance use disorder; adverse consequences of use; inappropriate use of prescribed substances; and urgent needs, including suicide risk;
28.4.5. Previous behavioral health services, including diagnostic information; treatment information; efficacy of current or previously used medication; physical health history and current status; diagnoses; mental status and current level of functioning;
28.4.6. Pertinent current and historical life situation information, including the patient’s age; gender; employment history; involvement in legal proceedings; family history; history of abuse or neglect; and relationships, including natural supports;
28.4.7. Assessment of the individual’s access to social supports, family, friends, employment, housing, finances and whether any legal problems exist;
28.4.8. Use of alcohol and tobacco;
28.4.9. Need for, and availability of, social supports;
28.4.10. Risk-taking behaviors;
28.4.11. Level of educational functioning;
28.4.12. Adjustment to disabilities or disorders; and
28.4.13. Motivation for treatment.
28.5. The patient’s primary counselor shall review the biopsychosocial assessment and prepare a concise, interpretive multidisciplinary summary that:
28.5.1. Is based on the assessment data;
28.5.2. Describes and evaluates the level and severity of the individual’s substance use disorder behaviors;
28.5.3. Is used in the development of the individualized treatment plan of care; and
28.5.4. Identifies any co-occurring disabilities or disorders that should be addressed in the development of the individualized treatment plan of care.
W. Va. Code R. § 71-27-29 Individualized Treatment Plan of Care
29.1. Delivery of patient care and treatment interventions shall be based on the needs identified in the individualized treatment plan of care.
29.2. Within 30 days after admission of a patient, the MAT program shall develop a more comprehensive individualized treatment plan of care and attach it to the patient’s chart no later than five days after the plan is developed. The individualized treatment plan of care shall be developed pursuant to the guidelines and protocols established by the American Society of Addiction Medicine (ASAM), the Center for Substance Abuse Treatment (CSAT) and the National Institute on Drug Abuse (NIDA), the American Association for the Treatment of Opioid Dependence (AATOD), or such other nationally recognized authority approved by the Director. The individualized treatment plan of care shall include a recovery model based upon the approved guidelines and protocols.
29.3. The individualized treatment plan of care shall be reviewed by the program physician, primary counselor and patient at least every 90 days and documented in the patient record. Reviews shall address each of the objectives identified on the initial plan of care; document all treatment, counseling, medications and other services rendered to the patient; and document the patient’s progress. A revised plan of care may be implemented with each review. If a new plan of care is not implemented, the reasons for such decision should documented in the patient’s record. Paper and electronic plans of care, including all reviews and updates, must be acknowledged by the patient.
29.4. The initial and quarterly individualized treatment plans of care shall be developed by the patient, the program physician and primary counselor, with input as appropriate from other health care providers. The individualized treatment plan of care shall be drafted to meet the specific needs of the patient. After the individualized treatment plan of care is developed and approved by the patient, the plan of care shall be placed in the patient’s chart within five days of development. The patient shall receive a copy of all of his or her individualized treatment plans of care.
29.5. All individualized treatment plans of care shall include, at a minimum:
29.5.1. Documentation of the patient’s diagnoses; the proposed medical treatment and counseling; medication dosages and administration;
29.5.2. A requirement that the patient regularly attend and participate in the MAT program, both medical and counseling aspects, as determined necessary by the staff and patient;
29.5.3. The identification of triggers for misuse of substances;
29.5.4. The development and use of coping strategies for each trigger;
29.5.5. The development of a detailed relapse prevention plan;
29.5.6. Meaningful follow-up on any identified behavioral health issues;
29.5.7. Follow-up medical or physical issues as necessary;
29.5.8. A vocational evaluation, formal or informal;
29.5.9. A plan to achieve financial stability and independence;
29.5.10. A requirement that the patient abstain from use of illicit substances, abuse of prescription substances or other substances of abuse;
29.5.11. Documentation of other individual or familial issues as relevant and appropriate and the proposed means of addressing such issues;
29.5.12. The success of the patient’s treatment, initiatives and goals;
29.5.13. A description of services and their frequency to be provided for the patient and primarily directed to achieve the expected goals and outcomes;
29.5.14. The results from initial, monthly and random drug tests; and
29.5.15. Such other information as recommended by the guidelines and recovery model utilized for the patient.
29.6. The individualized treatment plan of care shall reflect the patient’s current physical health condition and whether the patient requires other health care services. MAT programs without primary care services onsite shall refer patients for appropriate laboratory tests and additional medical treatment and follow up on the results.
29.7. Each MAT program shall provide opportunities for family involvement in the therapy provided to each patient and document such involvement in the individualized treatment plans of care.
29.8. The medical staff shall conduct careful discussions with the patient regarding the patient’s continued desire to remain in the MAT program on a maintenance schedule of medication and document such discussions in the patient’s chart and individualized plans of care.
29.8.1. MAT programs shall make every effort to retain patients in treatment as long as clinically appropriate and medically necessary in accordance with approved national guidelines and acceptable to the patient.
29.8.2. At the time of the quarterly review, the patient shall again be presented with the option of participating in alternative treatment, such as medically-supervised withdrawal. The patient shall sign and date a statement indicating whether he or she wishes to participate in an alternative form of treatment or remain within the program in an ongoing recovery-oriented maintenance format. The statement shall be included with the patient’s individualized treatment plan of care.
29.8.3. If the patient chooses the option of participating in alternative treatment, the individualized treatment plan of care shall include a consent form signed by the patient acknowledging that under the detoxification protocol the strength of maintenance doses of medication-assisted treatment medication should decrease over time and that the participant is required to work toward a recovery-oriented lifestyle.
29.8.4. A patient in good standing with the program, as defined by policy, has the right to continue to stay in the program. At no time should such a patient feel pressured to enter a program of withdrawal over his or her objections.
29.8.5. If a patient wishes to enter medically-supervised withdrawal, the individualized treatment plan of care shall reflect that choice.
29.8.6. If at any time a patient in good standing wishes to re-enter a maintenance program, the patient may do so in consultation with the primary counselor and medical staff.
29.9. With the patient’s permission, the MAT program shall obtain complete medical records from other health care providers, including counselors, and maintain the records in the patient’s chart and the individualized treatment plan of care.
29.10. Coordination of Care Agreement.
29.10.1. The coordination of care agreement shall be signed by the patient, program physician and primary counselor. If a change of program physician or primary counselor takes place, a new agreement must be signed.
29.10.2. The coordination of care agreement shall be reviewed and updated at least annually. If the coordination of care agreement is reviewed, but not updated, the review shall be documented in the patient’s record.
29.10.3. The coordination of care agreement shall include the following:
29.10.3.a. An authorization allowing communication between the program physician and primary counselor so that the patient may receive comprehensive and quality medication-assisted treatment;
29.10.3.b. The name and contact information for the program physician and primary counselor;
29.10.3.c. The categories of records which may be shared;
29.10.3.d. A summary of treatment and goals, diagnoses and services to be received onsite or by referral;
29.10.3.e. Current medications being prescribed, including dosage, frequency and delivery;
29.10.3.f. Date and prescription history for medication-assisted treatment medications; and
29.10.3.g. Estimated length of treatment.
29.10.4. The coordination of care agreement will be provided in a form prescribed and made available by the Director.
W. Va. Code R. § 71-27-30 Unsupervised Take-Home Medications
30.1. Each MAT program shall develop and implement policies and procedures regarding unsupervised take-home medication schedules that consider the best interests of each patient, as well as the interests of the public at large. The policies and procedures shall be developed and implemented in accordance with federal and state laws, rules and regulations and pursuant to guidelines and protocols from approved authorities. The policies and procedures should assist patients with treatment recovery and simultaneously prevent diversion, ensure safe storage and security of medication and prevent overdoses. Policies and procedures shall address the granting and rescinding of take-home medication privileges.
30.2. Approved guidelines and protocols include those adopted by the American Society of Addiction Medicine (ASAM), the Center for Substance Abuse Treatment (CSAT), the National Institute on Drug Abuse (NIDA), the American Association for the Treatment of Opioid Dependence (AATOD) and other authorities approved by the Director. A MAT program may submit a written request that the Director approve another such program and shall provide all applicable documentation that supports such approval. The Director has the sole discretion in determining whether to add another program to the list of approved authorities.
30.3. All MAT program facilities that provide unsupervised approved use of medications shall be open seven days per week, except for eight holidays and two training days per year, when the programs may be closed.
30.4. The interdisciplinary team shall make recommendations to the patient’s program physician regarding take-home medications for each patient. The program physician shall make the final decision regarding approval of take-home medications in accordance with federal and state laws, rules and regulations and guidelines and protocols from approved authorities. The program physician shall document all approved changes in take-home privileges in the patient record and the individualized treatment plan of care.
30.5. In determining which patients may be permitted unsupervised use of medications, the program physician shall ensure the patient demonstrates a level of current lifestyle stability as evidenced by the following in determining whether a patient is responsible in handling medication-assisted treatment medications for unsupervised use:
30.5.1. Cessation of illicit drug use;
30.5.2. Absence of recent abuse of drugs, including opioid and non-narcotic drugs, and alcohol;
30.5.3. Regular program attendance, including dosing and participation in counseling and group sessions;
30.5.4. Absence of significant behavioral problems;
30.5.5. Absence of recent criminal activity, including, but not limited to, charges and convictions;
30.5.6. Stability of the patient’s home environment and social relationships;
30.5.7. Demonstrated satisfactory adherence to MAT program rules, policies and procedures for at least three months;
30.5.8. Assurance that take-home medication can be safely stored within the patient’s home, taking into account the patient’s current living situation and other members of the household;
30.5.9. Whether the rehabilitative benefit the patient derives from decreasing the frequency of program attendance outweighs the potential risks of diversion;
30.5.10. The ability of the patient to responsibly self-medicate;
30.5.11. Other special needs of the patient, including, but not limited to, split dosing, physical health needs and pain treatment;
30.5.12. The patient’s work, school or other daily-life activity schedule; and
30.5.13. Hardship experienced by the patient in traveling to and from the program.
30.6. The determination of whether to approve a patient for unsupervised take-home medications consistent with the criteria outlines in this section shall be documented in the patient’s medical record.
30.7. The program physician and counselor shall educate the patient on the safe transportation and storage of take-home medications.
30.8. Each MAT program shall maintain current procedures adequate to identify the theft or diversion of take-home medications, including labeling containers with the MAT program’s name, address and telephone number. Programs must also ensure that take-home supplies are packaged in a manner that is designed to reduce the risk of accidental ingestion, including child-proof containers.
30.9. The number of doses of take-home medication shall be determined by the program physician in accordance with guidelines and protocols of approved authorities and after consultation with the interdisciplinary team and shall not exceed the recommended doses. The take-home medication treatment plan shall be for 90-day periods. The patient’s individualized treatment plan of care may include permission for the patient to take-home doses of medication subject to the following restrictions:
30.9.1. During the first 90-day period of treatment, no take-home doses shall be permitted during the first 30 days of treatment. Thereafter, the take-home supply is limited to a single dose each week, except for holidays or days when the facility is closed. The patient shall ingest all other doses under appropriate supervision.
30.9.2. In the second 90-day period of treatment, the take-home supply is limited to two doses per week;
30.9.3. In the third 90-day period of treatment, the take-home supply is limited to three doses per week;
30.9.4. In the remaining months of the first year of treatment, a patient may be given a maximum six-day supply of take-home medication.
30.9.5. After one year of continuous treatment, a patient may be given a maximum two-week supply of take-home medication.
30.9.6. After two years of continuous treatment, a patient may be given a maximum one-month supply of take-home medication, contingent upon the patient making monthly visits to the MAT program.
30.10. No medications shall be administered to patients in short-term detoxification treatment for unsupervised or take-home use.
30.11. Any patient in comprehensive maintenance treatment may receive a single take-home dose for a day that the MAT program facility is closed for business, including Sundays and holidays.
30.12. Patients participating in the unsupervised take-home medication plan are subject to the provisions of section 34 of this rule regarding positive drug test results. The failure to pass a drug test may result in a change to the individualized treatment plan of care, including a loss of unsupervised take-home medication privileges or discharge from the program.
30.13. The program physician may approve temporary unsupervised take-home medication for documented family or medical emergencies or other exceptional circumstances, pursuant to authorized guidelines and protocols approved by the state opioid treatment authority. Patterns of emergency take-home provisions shall be tracked and monitored by the MAT program, included in the patient records and be made available for review by regulatory bodies and the designated state oversight authority.
30.14. Guest dosing at a nearby program is preferred whenever possible and shall be documented in the patient’s chart and individualized treatment plan of care.
30.15. Each MAT program shall develop and implement policies and procedures that address the transfer of patients from one MAT program to another.
30.16. The state opioid treatment authority may approve exceptions to the requirements of this section, including alternative medications, on a case-by-case basis upon application for an exemption by the program physician, relating to the length of time of satisfactory adherence to program rules, policies and procedures and the number of days of take-home medication when a patient has provided documentation, which shall be included in the patient’s record, of the following:
30.16.1. The patient has a permanent physical disability;
30.16.2. The patient has a temporary disability; or
30.16.3. The patient has an exceptional circumstance such as illness, personal or family crisis, or travel which interferes with the patient’s ability to conform to the applicable mandatory attendance schedules.
30.17. An exemption granted under subsection 30.16.1. of this rule shall be reviewed at least annually to determine whether the need for the exception still exists.
30.18. An exemption granted under subsection 30.16.2. of this rule shall continue only for so long as the temporary disability or exceptional circumstance exists.
30.19. With an exemption granted under subsection 30.16.3. of this rule, the program may not permit a patient to receive more than a two-week take-home supply of medication.
W. Va. Code R. § 71-27-31 Detoxification Program
31.1. In addition to recovery-oriented medication-assisted treatment services, each MAT program shall provide both long-term and short-term detoxification recovery treatment services, either onsite or by referral. The program physician or a physician extender shall provide onsite medical supervision and oversight of the detoxification treatment program. If detoxification treatment is provided by referral, the program physician shall maintain documentation and communication with the referred detoxification program and keep such documentation in the patient’s record.
31.2. All potential patients shall be offered the opportunity to participate in either a recovery-oriented long-term detoxification treatment services plan or a short-term detoxification services plan of varying durations. A detoxification treatment services plan shall be implemented only if agreed upon by the patient and deemed appropriate by the physician or physician extender through utilizing and applying established diagnostic criteria.
31.3. Patients with two or more unsuccessful detoxification episodes within a 12-month period must be assessed by the MAT program physician for other forms of treatment. A program shall not admit a patient for more than two detoxification treatment episodes in one year. One year of physiologic dependence is not required for detoxification treatment although documentation of current dependency is required.
31.4. The patient’s individualized treatment plan of care shall state whether the patient chose detoxification treatment services and, if so, whether the patient selected the short-term or long-term detoxification treatment program. If the patient selected the option for detoxification treatment services, the patient’s chart shall include a consent form signed by the patient reflecting selection of such an option. The consent form shall include the patient’s acknowledgement that under the detoxification protocol the strength of maintenance doses of medication-assisted treatment medications should decrease over time; that the treatment period should be in accordance with national guidelines; and that the patient is required to work toward a recovery-oriented lifestyle.
31.5. The estimated time of detoxification required to reach the point of elimination of the medication shall be specified by the physician and documented in the patient’s individualized treatment plan of care. The titration schedule may be modified at any time. Any extension or modification of the titration schedule shall be documented in the patient’s individualized treatment plan of care and chart.
31.6. The program physician shall determine on an individualized basis the appropriate dosage of medication-assisted treatment medication to ensure stabilization during detoxification. The determination shall be based upon individual clinical data in accordance with guidelines and protocols established by approved authorities.
31.7. Exceptions to treatment guidelines or a patient’s refusal to participate in the program shall be documented and tracked by the program.
31.8. Urine or other toxicological screening instruments shall be used by the MAT program staff during detoxification treatment in order to demonstrate the absence of use of alternative licit or illicit drugs.
31.9. The MAT program shall develop and implement a policy regarding recovery-oriented detoxification treatment from medication-assisted treatment medication that shall include:
31.9.1. Individualized determination of a schedule of detoxification that is well tolerated by the patient and consistent with approved national guidelines and sound medical practices;
31.9.2. Implementation of a higher stabilizing dose in the event of impending relapse as appropriate and possible;
31.9.3. Assurances that voluntary detoxification shall be discontinued in the event of relapse and that provisions for maintenance treatment shall be made;
31.9.4. Evaluation or testing for pregnancy prior to detoxification; and
31.9.5. Provision for continuing care after the last dose of methadone or other medication-assisted treatment medication.
31.10. The MAT program shall have procedures for providing detoxification treatment services to persons prior to their incarceration in criminal justice system facilities if possible and foreseeable. When appropriate, the MAT program shall have cooperative agreements with the criminal justice system to encourage detoxification treatment services to persons who are incarcerated or on probation or parole and are required to become abstinent.
31.11. Short-Term Detoxification Treatment Services.
31.11.1. Short-term detoxification treatment services are those services projected to last fewer than 30 days.
31.11.2. Unsupervised doses of medication may not be administered to patients admitted for short-term detoxification unless the patient qualifies under a federal or state-approved exemption and, at the physician’s discretion, there is a verifiable emergency. If there is a verifiable exemption or emergency, the MAT program shall not allow the patient more than one unsupervised or take-home medication dose per week. If the program operates on a seven-days-per-week basis, no unsupervised take-home medications shall be allowed except on permitted holidays or closures or pursuant to an authorized exemption.
31.11.3. For a patient admitted for detoxification treatment services for 14 days or less, the program must offer a minimum of four counseling sessions per week.
31.12. Long-Term Detoxification Treatment Services.
31.12.1. Long-term detoxification treatment services are those services projected to last more than 30 and up to 180 or more days, depending on the patient’s clinical need.
31.12.2. Frequency of access to unsupervised medications shall be determined by the program physician in accordance with federal law and guidelines and protocols from an approved authority.
31.12.3. In a detoxification program of more than 30 days’ duration, the MAT program shall have a policy that grants the patient the opportunity to receive take-home medications. No unsupervised take-home medications may be administered or prescribed for a patient during the first 30 days of treatment unless the patient qualifies under an approved exemption or emergency. Thereafter, based upon federal law, approved national guidelines and the clinical judgment of the program physician, the quantity of unsupervised medication shall not exceed the following doses:
31.12.3.a. One unsupervised dose per week for the remaining 60 days of the first 90-day treatment plan. Provided, that in a week in which a holiday causes the MAT program to be closed, two doses may be allowed.
31.12.3.b. Two unsupervised doses per week during third 90 days of treatment.
31.12.3.c. Three unsupervised doses per week during third 90 days of treatment.
31.12.3.d. A maximum six-day supply of take-home medication in the remaining months of the first year of treatment.
31.13. Counseling Services.
31.13.1. Counseling services provided in conjunction with detoxification treatment services shall be designed to:
31.13.1.a. Explore other modalities of care, including drug and alcohol treatment following detoxification or discharge;
31.13.1.b. Motivate the patient to continue to receive services or to develop a plan for recovery following discharge; and
31.13.1.c. Identify triggers for relapse and a coping plan for dealing with each, detailed and in writing and given to the patient prior to discharge.
31.13.2. The counseling plan shall be developed in conjunction with the patient and included with the individualized treatment plan of care.
31.13.3. For a patient projected to be involved in detoxification treatment services for six months or less, the MAT program must offer the patient a minimum of three counseling sessions per week for the first month and a minimum of two counseling sessions each month thereafter.
31.14. Maintenance treatment shall be discontinued within two continuous years after the treatment is begun unless, based upon the clinical judgment of the medical director or program physician and staff which shall be recorded in the client’s record, the client’s status indicates that the treatment should be continued for a longer period of time because discontinuance from treatment would lead to a return to illicit opiate abuse or dependence, or increased psychiatric, behavioral or medical symptomology.
W. Va. Code R. § 71-27-32 Administrative Withdrawal
32.1. Administrative withdrawal is an involuntary withdrawal or administrative discharge from pharmacotherapy. The schedule of withdrawal may be brief; less than 30 days, if necessary.
32.2. MAT programs shall develop and implement policies and procedures for the involuntary termination from treatment that includes and describes the rights of the patient and the responsibilities and rights of the program.
32.3. On admission, the patient shall be given a copy of the administrative withdrawal policies and procedures and shall sign a statement acknowledging receipt of the same. The signed acknowledgement shall be maintained in the patient’s record.
32.4. Administrative withdrawal may result from any of the following:
32.4.1. Non-payment of fees. The MAT program shall make every effort to consider all clinical data, including patient participation and compliance with treatment prior to initiating administrative withdrawal for non-payment. If the patient has a history of compliance and cooperation with treatment, the program shall document every effort to explore alternatives to administrative withdrawal with the patient prior to onset of withdrawal. If necessary and unavoidable, the schedule of withdrawal shall follow protocols and guidelines of approved authorities.
32.4.2. Disruptive or adverse effect conduct. Disruptive conduct or behavior considered to have an adverse effect on the program, clinical staff or patient population of such gravity as to justify the involuntary withdrawal and discharge of a patient. Such behaviors may include violence, threat of violence, dealing drugs, diversion of pharmacological agents, repeated loitering, failure to follow treatment plan objectives or noncompliance with program rules, policies and procedures resulting in an observable, negative impact on the program, staff and other patients.
32.4.3. Incarceration or other confinement. The MAT program is responsible for working with law enforcement and corrections personnel in order to avoid mandatory withdrawal whenever possible.
32.5. The MAT program shall document in the patient’s individualized treatment plan of care and chart all efforts regarding referral or transfer of the patient to a suitable, alternative treatment program.
32.6. Female patients shall have a negative pregnancy screen prior to the onset of administrative withdrawal.
32.7. The program shall have in place a detailed relapse prevention plan developed by the counselor in accordance with approved national guidelines and in conjunction with the patient. The prevention plan shall be given to the patient in writing prior to the administration of the final dose of medication.
W. Va. Code R. § 71-27-33 Medical Withdrawal
33.1. Medical withdrawal occurs as a voluntary and therapeutic withdrawal agreed upon by clinical staff and the patient in accordance with approved national guidelines including, but not limited to, ASAM, CSAT, NIDA, AATOD, FSMB and SAMHSA. In some cases, the withdrawal may be against the advice of clinical staff or against medical advice.
33.2. The MAT program shall supply a schedule of dose reduction well tolerated by the patient.
33.3. The program shall offer supportive treatment, including increased counseling sessions and referral to a self-help group or other counseling provider as appropriate.
33.4. If the patient leaves the MAT program abruptly against medical advice, the program may readmit the patient within 30 days without a formal reassessment procedure. However, the program must perform a physical assessment and a biopsychosocial assessment upon readmission. The program shall document attempting to assist the patient with any issues which may have triggered his or her abrupt departure.
33.5. The MAT program shall make provisions for continuing care for each patient following the last dose of medication and for re-entry to maintenance treatment if relapse occurs or if the patient should reconsider withdrawal.
33.6. Female patients shall have a negative pregnancy screen prior to the onset of medically-supervised withdrawal.
33.7. The program shall have in place a detailed relapse prevention plan developed by the primary counselor in accordance with approved national guidelines and in conjunction with the patient. The prevention plan shall be given to the patient in writing prior to the administration of the final dose of medication.
W. Va. Code R. § 71-27-34 Laboratory Services; Drug Screens
34.1. All patients in the MAT program shall undergo monthly drug testing. Random drug testing of all patients shall be conducted during the course of treatment as required in subdivision 34.2.4.a.
34.2. Collection and Testing.
34.2.1. MAT programs shall work carefully with toxicology laboratories to ensure valid, appropriate results of drug screens. Workplace testing standards are not appropriate for urine testing. Testing shall be done only by laboratories with appropriate federal certification.
34.2.2. Each MAT program shall have the capability of obtaining medication blood levels when clinically indicated or through random or monthly drug testing of all patients.
34.2.3. Urine drug screening and other adequately tested toxicological procedures shall be used as an aid in monitoring and evaluating a patient’s progress in treatment.
34.2.4. Drug screening policies and procedures shall be determined on an individualized basis for each patient, subject to the following requirements:
34.2.4.a. A patient receiving medication-assisted treatment medication maintenance services must have at least 12 random drug screens per year. The patient shall be tested upon admission; at approximately 14 days of treatment; and then monthly through the remainder of the time the patient remains in the MAT program.
34.2.4.b. A patient undergoing medically-supervised or other types of withdrawal may be required to have more frequent collection and analysis of samples.
34.2.4.c. When using urine as a screening mechanism, all patient drug testing shall be observed to minimize the chance of adulterating or substituting another individual’s urine.
34.2.4.d. MAT programs shall develop and implement policies and procedures to minimize misidentification of urine specimens and to ensure that the tested specimens can be traced to the donor patient.
34.2.5. Drug screenings shall include toxicological analysis for drugs of abuse, including, but not limited to:
34.2.5.a. Buprenorphine, especially in ratio to Norbuprenorphine;
34.2.5.b. Opiates including oxycodone at common levels of dosing;
34.2.5.c. Methadone, medication-assisted treatment medications or any other medication used by the program as an intervention for that patient;
34.2.5.d. Benzodiazepines, including testing procedures that detect diazepam, clonazepam, alprazolam and lorazepam;
34.2.5.e. Cocaine;
34.2.5.f. Meth-amphetamine/amphetamines;
34.2.5.g. Tetrahydrocannabinol, delta-9-tetrahydrocannabinol, dronabinol or other similar substances; or
34.2.5.h. Other drugs or substances as determined by community standards, regional variation or clinical indication, such as carisoprodol or barbiturates.
34.2.6. Collection and testing shall be done in a manner that assures a method of confirmation for positive results and documents the chain of custody of the collection.
34.2.7. When necessary and appropriate, breathalyzers or other testing equipment may be used to screen for possible alcohol abuse. No individual shall receive a daily dose who has a breathalyzer result which is equal to or greater than 0.02. The individual may return to the program for dosing during the same day if the breathalyzer results reach acceptable limits.
34.2.8. Each MAT program shall document both the results of drug tests and the follow-up therapeutic action taken in the patient record.
34.2.9. Each MAT program shall ensure that program physician demonstrate competence in the interpretation of “false negative” and “false positive” laboratory results as they related to physiological issues, differences among laboratories and factors that impact the absorption, metabolism and elimination of opiates.
34.2.10. The program physician shall thoroughly evaluate a positive drug screen for any potentially licit substance such as benzodiazepines, carisoprodol, barbiturates and amphetamines. The program shall verify with appropriate releases of information that:
34.2.10.a. The patient has been prescribed these medications by a licensed physician for a legitimate medical purpose; and
34.2.10.b. The prescribing physician is aware that the patient is enrolled in a MAT program.
34.2.11. If a patient refuses the release of information to contact his or her physician but can produce prescriptions or other evidence of a legitimate prescription, such as current medication bottles that are fully labeled, the interdisciplinary team shall consider the patient’s individual situation and the possibility that he or she may be dismissed from the care of his or her physician if the physician discovers that the patient is in a MAT program. The program physician shall make the ultimate decision as to the patient’s continuing care in the program and the circumstances of that care.
34.2.12. Nothing contained in this rule shall preclude any MAT program from administering any additional drug test it determines are necessary.
34.3. Test Results.
34.3.1. A positive test is a test that results in the presence of any drug or substance listed in subsection 34.2.5. of this rule, or any other drug or substance prohibited by the MAT program. The presence of a drug or substance which is part of the patient’s individualized treatment plan of care shall not be considered a positive test. Any refusal to participate in a random drug test shall be considered a positive drug test.
34.3.2. A positive drug test result after the first six months in a MAT program shall result in the following:
34.3.2.a. Upon the first positive drug test result, the MAT program shall:
34.3.2.a.1. Provide mandatory and documented weekly counseling to the patient of no less than 30 minutes, which shall include weekly meetings with a counselor or other professional as described in section 26.8. of this rule who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules on staff at the MAT program or by formal referral agreement; and
34.3.2.a.2. Immediately revoke the take-home medication privilege for a minimum of 30 days;
34.3.2.b. Upon a second positive drug test result within six months of a previous positive drug test result, the MAT program shall:
34.3.2.b.1. Provide mandatory and documented weekly counseling to the patient of no less than 30 minutes, which shall include weekly meetings with a counselor or other professional as described in subsection 26.8. of this rule who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules on staff at the MAT program;
34.3.2.b.2. Immediately revoke the take-home medication privilege for a minimum of 60 days; and
34.3.2.b.3. Provide mandatory documented treatment to interdisciplinary team meetings with the patient.
34.3.2.c. Upon a third positive drug test result within a period of six months the MAT program shall:
34.3.2.c.1. Provide mandatory and documented weekly counseling to the patient of no less than 30 minutes, which shall include weekly meetings with a counselor or other professional as described in section 26.8. of this rule who is licensed, certified or enrolled in the process of obtaining licensure or certification in compliance with the rules on staff at the MAT program;
34.3.2.c.2. Immediately revoke the take-home medication privilege for a minimum of 120 days, if applicable; and
34.3.2.c.3. Provide mandatory and documented treatment to interdisciplinary team meetings with the patient which will include, at a minimum: the need for continuing treatment; a discussion of other treatment alternatives; and the execution of a contract with the patient advising the patient of discharge for continued positive drug tests.
34.3.2.d. Upon any subsequent positive drug test(s) within a six-month period, the patient may be immediately discharged from the MAT program, or, at the option of the patient, may immediately be provided the opportunity to participate in a detoxification plan, followed by immediate discharge from the MAT program. If the patient remains in treatment with the OPT, the program physician and primary counselor must meet with the patient and revise the individual treatment plan of care and revise the coordination of care agreement.
34.3.3. Positive screens for tetrahydrocannabinol, delta-9-tetrahydrocannabinol, dronabinol or similar substances shall be carefully clinically evaluated and shall in most cases result in reduction in take-home medication privileges unless other action is considered appropriate by the medical director or program physician and primary counselor. Testing positive solely for tetrahydrocannabinol, delta-9-tetrahydrocannabinol, dronabinol or similar substances shall not serve as a basis for discharge from the program.
34.3.4. Absence of medication-assisted treatment medication prescribed by the program for the patient is evidence of possible medication diversion. Whenever there is evidence of possible medication-assisted treatment medication diversion, the patient shall be re-evaluated by the program physician and interdisciplinary team and the individualized treatment plan of care shall be adjusted, if needed, accordingly.
W. Va. Code R. § 71-27-35 Special Populations
35.1. Concurrent Alcohol and Polysubstance Abuse.
35.1.1. Each MAT program shall address abuse of alcohol and other non-opioid substances within the context of the medication-assisted therapy effort.
35.1.2. The MAT program shall ensure that its staff is fully trained and knowledgeable regarding current effective strategies for treating alcohol, cocaine, and other drug abuse.
35.1.3. Ongoing polysubstance use is not a reason for discharge unless the patient refuses recommended, more intensive levels of care. The interdisciplinary team shall consider the patient’s condition and address the situation from a clinical perspective and in accordance with guidelines and protocols from approved authorities.
35.1.4. Each MAT program shall have a policy regarding treatment of co-morbid disorders such as psychiatric and medical disorders. The goal of the treatment shall be to provide treatment for these disorders in as seamless a fashion as possible, maximizing patient convenience and compliance with appointments and recommendations. The program shall develop interagency agreements whenever possible to ensure smooth referral processes and interchange of information.
35.2. Behavioral Health Needs.
35.2.1. Each MAT programs shall ensure that patients with behavioral health needs are identified through the evaluation process and referred for appropriate treatment.
35.2.2. At all phases of treatment, the MAT program shall monitor patients during detoxification withdrawal and recovery for indications of symptoms of behavioral illness.
35.2.3. Each MAT program shall establish linkages with licensed behavioral health providers in the community.
35.2.4. Each MAT program may provide psychotropic medication management onsite by appropriately trained medical professionals. Individualized treatment plans of care shall describe the goals of psychotropic medication management, which shall be reviewed regularly. The patient’s chart and individualized treatment plan of care shall document regular contact with the prescribing physician or physician extender, or both, for the distinct purpose of monitoring prescribed psychotropic medications.
35.3. HIV Patients.
35.3.1. The MAT program shall educate all patients regarding HIV/AIDS, testing procedures, confidentiality, reporting, follow-up care, safer sex, social responsibilities and sharing of intravenous equipment.
35.3.2. The program shall establish linkages with HIV/AIDS treatment programs in the community.
35.4. Chronic Pain Patients.
35.4.1. Each MAT program shall ensure that physicians practicing at the facility are knowledgeable in the treatment and management of substance use disorder in a context of chronic pain and pain management. The program may not prohibit a patient diagnosed with chronic pain from receiving medication for either maintenance or withdrawal in a program setting.
35.4.2. Each MAT program shall ensure continuity of care and communication between programs or physicians regarding patients receiving treatment in both a MAT program and a facility or physician’s office for purposes of pain management, with the patient’s written permission. If a patient refuses permission for the two entities to communicate and coordinate care, the program shall document refusal and may make clinically appropriate decisions regarding take-home medication privileges and continuation in treatment.
35.5. Pregnant Patients.
35.5.1. Pregnant women seeking and needing treatment shall be enrolled in the MAT program and provided treatment in accordance with guidelines and protocols from approved authorities.
35.5.2. The MAT program shall ensure that every pregnant patient has the opportunity for prenatal care, either onsite or by referral. If the arrangement is by referral, the program shall have agreements in place, including informed consent procedures, which ensure exchange of pertinent clinical information regarding compliance with the recommended plan of medical care.
35.5.3. If not available elsewhere, the program shall offer basic instruction on maternal, physical and dietary care as part of its counseling services and document the provision of the services in the clinical record.
35.5.4. With respect to pharmacotherapy for opioid addicted pregnant women in medication-assisted therapy, the program shall ensure that:
35.5.4.a. Maintenance treatment dosage levels shall be maintained at the lowest possible dosage level that is a medically appropriate therapeutic dose as determined by the medical director or program physician taking the pregnancy into account.
35.5.4.b. The initial medication-assisted treatment dose for a newly admitted pregnant patient and the subsequent induction and maintenance dosing strategy reflect the same effective dosing protocols used for all other patients;
35.5.4.c. The dose is monitored carefully, moving rapidly to supply increased or split dose if it becomes necessary; and
35.5.4.d. If a pregnant patient elects to withdraw from medication-assisted treatment, that withdrawal is not initiated by the program before 14 weeks and after 32 weeks’ gestation; perform regular fetal assessments as appropriate for fetal age and require that withdrawal is supervised by a physician experienced in substance use disorder medicine.
35.5.5. The MAT program shall ensure appropriate referral for follow-up and primary care for the mother and infant.
35.5.6. If a pregnant patient is discharged, the MAT program shall identify the physician to whom the patient is being discharged and this information shall be retained in the clinical record.
35.5.7. The program shall offer onsite parenting education and training to all male and female patients who are parents or shall refer interested patients to appropriate alternative services for training. Any referral shall be documented in the patient’s record.
35.5.8. The program shall offer reproductive health education to all patients and appropriate referrals for contraceptive services as necessary.
35.6. Criminal Justice. Each MAT program shall establish agreements and develop and implement procedures to coordinate with agents of the criminal justice system on behalf of patients insofar as permitted by patient confidentiality requirements.
W. Va. Code R. § 71-27-36 Advertisement Disclosure
36.1. Any advertisement made by or on behalf of a MAT program through public media, such as a telephone directory, medical directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication, concerning the treatment of substance use disorder shall include the name of, at a minimum, one program physician responsible for the content of the advertisement.
W. Va. Code R. § 71-27-37 Licensure Denials, Revocations and Suspensions
37.1. Grounds for Denial, Revocation or Suspension.
37.1.1. The Director, in consultation with the Inspector General, may deny, revoke or suspend a license issued pursuant to this rule if any provisions of federal or state law or this rule are violated. The Director, in consultation with the Inspector General, may revoke a license and prohibit all program physicians associated with that MAT program from practicing at the program location based upon the findings and results of an annual, periodic, complaint or other inspection and evaluation. The period of suspension for the license of a MAT program shall be prescribed by the Director, but may not exceed one year.
37.1.2. The Director, in consultation with the Inspector General, may deny, revoke or suspend a MAT program license for one or more the following reasons:
37.1.2.a. The Director makes a determination that fraud or other illegal action has been committed by any owner of the MAT program.
37.1.2.b. The MAT program has violated federal, state or local law relating to licensure, registration, building, health, fire protection, safety, sanitation or zoning;
37.1.2.c. The MAT program engages in practices that jeopardize the health, safety, welfare or clinical treatment of a patient;
37.1.2.d. The MAT program has failed or refused to submit reports or make records available as requested by the Director;
37.1.2.e. A MAT program has refused to provide access to its location or records as requested by the Director;
37.1.2.f. A MAT program’s medical director has knowingly and intentionally misrepresented actions taken to correct a violation;
37.1.2.g. An owner or medical director of a MAT program concurrently operates an unlicensed MAT program;
37.1.2.h. A program physician or any owner knowingly operates, owns or manages an unlicensed MAT program that is required to be licensed;
37.1.2.i. The owners of a MAT program fail to apply for a new license for the program upon a change of ownership and operate the program under the new ownership;
37.1.2.j. A program physician or any owner acquires or attempts to acquire a license for a MAT program through misrepresentation or fraud or procures or attempts to procure a license for a MAT program for any other person by making or causing to be made any false representation; or
37.1.2.k. The MAT program fails to have a medical director practicing at the program location as required by this rule.
37.2. Effect of Denial, Revocation or Suspension.
37.2.1. If a license for a MAT program has been revoked, the Director, in consultation with the Inspector General, may stay the effective date of the revocation if the medical director, owner or owners and administrator of the program can show that the stay is necessary to ensure appropriate referral and placement of patients.
37.2.2. If the license of a MAT program is denied, revoked or suspended, no person, firm, association or corporation may operate the program as a MAT program as of the effective date of the denial, revocation or suspension. The owners of the MAT program are responsible for removing all signs and symbols identifying the premises as a MAT program within thirty days from the date of the denial, revocation or suspension.
37.2.3. If a license for a MAT program has been denied, revoked or suspended the program must supply, at a minimum, a copy of the following information to the Director:
37.2.3.a. A closure notice to be mailed to all active patients meeting the guidelines set forth by its respective medical board;
37.2.3.b. The date the closure letter will be mailed to all active patients;
37.2.3.c. The number of active patients to receive the closure notice;
37.2.3.d. A Class II legal advertisement that complies with the requirements of Article 3, Chapter 59 of the West Virginia Code regarding the program closure, including the dates the notice will appear and the name of the newspaper; and
37.2.3.e. Contact information the program has supplied to patients who may need help locating a new treating physician or program.
37.2.4. Upon the effective date of the denial, revocation or suspension the medical director of the MAT program shall advise the Director and the West Virginia Board of Pharmacy of the disposition of all drugs located on the premises. The disposition is subject to the supervision and approval of the Director and the DEA. Drugs that are purchased or held by a MAT program that is not licensed may be deemed adulterated.
37.2.5. If the license of a MAT program is revoked or suspended, no person named in the licensing documents of the program, including persons owning or operating the MAT program, may apply to own, license, register or operate another MAT program for five years after the date of revocation or suspension, either individually or as part of a group practice, firm, association or corporation.
37.2.6. If a MAT program license is denied or revoked, a new application for license shall be considered by the Director, if, when after the conditions upon which denial or revocation was based have been corrected and evidence of this fact has been furnished. A new license may then be granted after proper inspection has been made and the Director makes a written finding that all provisions of this article and rules promulgated pursuant to this article have been satisfied.
W. Va. Code R. § 71-27-38 Penalties and Equitable Relief
38.1. Grounds for Penalties and Injunctions.
38.1.1. Any person, partnership, association or corporation which establishes, conducts, manages or operates a MAT program without first obtaining a license therefore or which violates any provisions of law or rule shall be assessed a civil money penalty by the Director, in consultation with the Inspector General, in accordance with this rule.
38.1.2. Each day of continuing violation after notification of the infraction shall be considered a separate violation.
38.1.3. If the MAT program fails to timely file reports required by section 14 of this rule, the Director, in consultation with the Inspector General, may impose a civil monetary penalty not to exceed $1,000 per day.
38.1.4. If the MAT program’s owner or owners, medical director and administrator knowingly and intentionally misrepresents actions taken to correct a violation, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $10,000 and revoke or deny the MAT program’s license.
38.1.5. If an owner or owners or medical director of a MAT program concurrently operates an unlicensed MAT program, the Director, in consultation with the Inspector General, may impose a civil money penalty upon the owner or owners or medical director, or both, not to exceed $5,000 per day.
38.1.6. If the owner of a MAT program that requires a license under this article fails to apply for a new license for the program upon a change of ownership and operates the program under the new ownership, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $5,000.
38.1.7. If a program physician knowingly operates, owns or manages an unlicensed MAT program that is required to be licensed pursuant to this article; knowingly prescribes or dispenses or causes to be prescribed or dispensed, controlled substances in an unlicensed MAT program that is required to be licensed; or obtains a license to operate a MAT program through misrepresentation or fraud; procures or attempts to procure a license for a MAT program for any other person by making or causing to be made any false representation, the Director, in consultation with the Inspector General, may assess a civil money penalty of not more than $20,000. The penalty may be in addition to or in lieu of any other action that may be taken by the Director, in consultation with the Inspector General, or any other board, court or entity.
38.2. The Director, in consultation with the Inspector General, may deny a MAT program’s application for licensure or application for renewal license; revoke or suspend a license; order an admissions ban or reduction in patient census for one or more of the following reasons:
38.2.1. The Director makes a determination that fraud or other illegal action has been committed;
38.2.2. The program has violated federal, state or local law relating to building, health, fire protection, safety, sanitation or zoning;
38.2.3. The program conducts practices that jeopardize the health, safety, welfare or clinical treatment of a patient;
38.2.4. The program has failed or refused to submit reports, comply with the documentation requirements of subsection 9.2.3., or make records available as requested by the Director or his or her designee; or
38.2.5. A program has refused to provide access to its location or records as requested by the Director, or his or her designee.
38.3. Notwithstanding the existence or pursuit of any other remedy, the Inspector General may, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association or corporation to restrain or prevent the establishment, conduct, management or operation of any MAT program or violation of any provisions of this rule without first obtaining a license therefore in the manner hereinbefore provided.
38.3.1. The Inspector General may also seek injunctive relief if the establishment, conduct, management or operation of any MAT program, whether licensed, registered or not, jeopardizes the health, safety or welfare of any or all of its patients.
38.3.2. In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the Director, in consultation with the Inspector General, shall consider the following factors:
38.3.2.a. The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient has resulted, or could have resulted, from the MAT program’s actions or the actions of the medical director or any treating physician employed by or associated with the program, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.
38.3.2.b. What actions, if any, the medical director or treating physician took to correct the violations;
38.3.2.c. Whether there were any previous violations at the MAT program; and
38.3.2.d. The financial benefits that the MAT program derived from committing or continuing to commit the violation.
38.4. Upon finding that a physician has violated the provisions of this rule, the Director shall provide notice of the violation to the applicable licensing board.
W. Va. Code R. § 71-27-39 Administrative Due Process
39.1. Before any MAT program license is denied, suspended or revoked, written notice shall be given to the owner or owners of the program, stating the grounds of the denial, suspension, revocation or penalty and the date set for any enforcement action.
39.1.1. The notice shall be sent by certified mail to the owner(s) at the address where the MAT program concerned is located.
39.1.2. Within 30 days of receipt of the notice, the owner(s) may submit a request for an administrative hearing or an informal meeting to address and resolve the findings.
39.1.3. The MAT program and its owner or owners shall be entitled to be represented by legal counsel at the informal meeting or at the hearing at their own expense.
39.1.4. All of the pertinent provisions of W. Va. Code §§29A-5-1, et seq. and 69 CSR 1 shall apply to and govern any hearing authorized by this rule.
39.1.5. If an owner fails to request a hearing within the time frame specified, he or she shall be subject to the full penalty imposed.
39.1.6. The filing of a request for a hearing does not stay or supersede enforcement of the final decision or order of the Board of Review. The Director, in consultation with the Inspector General, may, upon good cause shown, stay such enforcement.
W. Va. Code R. § 71-27-40 Administrative Appeals and Judicial Review
40.1. Any owner of a MAT program who disagrees with the final administrative decision as a result of the hearing may, within 30 days after receiving notice of the decision, appeal the decision to West Virginia Intermediate Court of Appeals.
40.1.1. The filing of a petition for appeal does not stay or supersede enforcement of the final decision or order of the Director. An appellant or Inspector General may appeal to the court for a stay of or to supersede the final decision or order.
40.1.2. The Intermediate Court of Appeals may affirm, modify or reverse the final administrative decision. The owner or owners, or the Inspector General may appeal the court’s decision to the Supreme Court of Appeals.
Series 28 Medication-Assisted Treatment - Office-Based Medication-Assisted Treatment
W. Va. Code R. § 71-28-1 General
1.1. Scope. -- This legislative rule establishes standards and procedures for the licensure and regulation of medication-assisted treatment - office-based medication-assisted treatment (OBMAT) programs.
1.2. Authority. -- W. Va. Code §16B-13-13.
1.3. Filing Date. -- May 29, 2025.
1.4. Effective Date. -- May 29, 2025.
1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2029.
1.6. Purpose. -- The purpose of this rule is to ensure that all West Virginia OBMAT programs conform to a common set of minimum standards and procedures to ensure the care, treatment, health, safety and welfare of patients therein.
1.7. Enforcement. -- This rule is enforced by the Inspector General. The Inspector General designates the Director of the Office of Health Facility Licensure and Certification to enforce the provisions of this rule.
W. Va. Code R. § 71-28-2 Definitions
2.1. Definitions incorporated by reference. -- Those terms defined in W. Va. Code §§16B-13-1, et seq. are incorporated herein by reference.
2.2. Administrative Detoxification or Administrative Withdrawal -- The detoxification from the approved medication-assisted treatment medication for the safety and well-being of the patient, other patients and staff of the OBMAT program.
2.3. Advanced Practice Registered Nurse -- A registered nurse who has acquired advanced clinical knowledge and skills preparing him or her to provide direct and indirect care to patients, completed a board approved graduate-level education program, passed a board-approved national certification examination, and has met all the requirements set forth by the West Virginia Board of Examiners for Professional Registered Nurses.
2.4. Adverse Event or Incident -- An event involving an immediate threat to the care or safety of an individual, either staff, patient, or visitor; the possibility of serious operational or personnel problems within the OBMAT program facility; or the potential to undermine public confidence in the OBMAT program.
2.5. Approved Authorities -- Programs or authorities that publish practice or treatment guidelines, standards, or protocols that the Director has approved for use by MAT programs. Approved authorities include, but are not limited to, the American Society of Addiction Medicine (ASAM); the Center for Substance Abuse Treatment (CSAT); the National Institute on Drug Abuse (NIDA); the American Association for the Treatment of Opioid Dependence (AATOD); the Federation of State Medical Boards (FSMB); and any other program or authority approved by the Director.
2.6. Case Management -- The process of coordinating and monitoring the services provided to a patient both within the program and in conjunction with other providers.
2.7. Clinical Staff -- The individuals employed by or associated with an OBMAT program who provide treatment, care, or rehabilitation to program patients or patients’ families.
2.8. Co-Occurring Disorders -- The combination of current or former substance use disorders and any other mental disorders recognized in the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
2.9. Coordination of Care Agreement -- An agreement signed by the physician, counsel, and patient allowing open communication and the exchange of health information between the indicated providers to ensure the patient is provided comprehensive and holistic treatment for substance use disorder, when medical treatment and counseling services are not being treated within the same program;
2.10. Counseling Session -- A face-to-face interaction, which may include telehealth, in a private location between a patient(s) and a primary counselor for a period of no less than 30 continuous minutes designated to address patient substance use disorder issues or coping strategies and individualized treatment plan of care.
2.11. Counselor -- A person who, by education, training, and experience, is qualified to provide psychosocial education, treatment, and guidance to patients enrolled with an OBMAT program and, if desired, to the families of such patients, in order to accomplish behavioral health, wellness, education, and other life goals.
2.12. Crisis -- A deteriorating or unstable situation often developing suddenly or rapidly that produces acute, heightened, emotional, mental, physical, medical or behavioral distress; or any situation or circumstance in which the individual perceives or experiences a sudden loss of his ability to use effective problem-solving and coping skills.
2.13. Critical Incident -- A life, safety, or health threat involving the staff or patients participating in a program, including, but not limited to, death or physical or sexual assault.
2.14. Detoxification or Medically Supervised Withdrawal Treatment -- The prescribing of a medication-assisted treatment medication to a patient in decreasing doses over time, under the supervision of a program physician, to alleviate adverse physical or psychosocial effects incident to withdrawal from the continuous or substantial use of an opioid drug.
2.15. Discharge Plan -- The written plan that establishes the criteria for a patient’s discharge from a service and identifies and coordinates delivery of any services needed after discharge.
2.16. Diversion -- An activity involving the legitimate acquisition of pharmaceutical agents illegally diverted to entities not intended as the recipients by the initial supplier.
2.17. Diversion Control Plan -- A required plan developed and implemented by the OBMAT program, which may include, but is not limited to, the assigning of responsibilities to medical and administrative staff and other specific measures to reduce the possibility of diversion of controlled substances from legitimate treatment to illicit use.
2.18. For-Cause Inspection -- An inspection by any federal or state agency or accreditation body of an OBMAT program that may be operating in violation of 42 C.F.R. § 8 or state medication-assisted treatment rules, may be providing substandard treatment or may be serving as a possible source of diverted medications.
2.19. Grievance -- A written or oral complaint filed by a patient with a program administrator, medical director, or state agency alleging inadequate treatment by the OBMAT program.
2.20. Individualized Plan of Care or Treatment Strategy -- A plan or strategy of treatment and care developed by the patient’s physician, counselors, and other health care professionals in conjunction with the patient that outlines attainable short-term treatment goals that are mutually acceptable to the patient and the OBMAT program and which specifies the services to be provided and the frequency and schedule for their provision.
2.21. Induction -- Initial treatment of a patient with medication-assisted treatment medication in order to suppress signs or symptoms of withdrawal or substance cravings; and generally, includes a gradual increase in medication-assisted treatment medication therapy until the symptoms are regularly and reliably suppressed or controlled.
2.22. Inspection or Survey -- Any examination by the Director or his or her designee of an OBMAT program including, but not limited to, the premises, staff, patients, and documents pertinent to initial and continued registration, so that the Director or his or her designee may determine whether a program is operating in compliance with registration. This includes any survey, monitoring visit, complaint investigation, or other inquiry conducted for the purposes of making a compliance determination with respect to registration requirements.
2.23. Long-Term Detoxification Treatment -- Detoxification or medically supervised withdrawal treatment for a period of more than 30 days.
2.24. Maintenance Treatment -- Treatment following induction and stabilization phases of treatment, and means the prescribing of a partial agonist treatment medication at stable dosage levels for a period in excess of 21 days in the treatment of an individual for opioid use disorder;
2.25. Maintenance Dose -- The level of medication-assisted treatment medication considered medically necessary to consistently suppress signs or symptoms of substance use disorders and substance cravings for individuals with a substance use disorder; and is generally administered at the end of the induction period and is individualized for each patient and may gradually change over time.
2.26. Medical and Rehabilitative Services -- Treatment and recovery services such as medical evaluations, counseling, and rehabilitative and other social programs intended to help patients in OBMAT programs become and remain productive members of society.
2.27. Medical or Patient Record -- Medical histories, records, reports, summaries, diagnoses, prognoses, records of treatments, and medication ordered and given, entries, x-rays, radiology interpretations, and other written electronic, or graphic data prepared, kept, made, or maintained in a facility that pertains to services rendered to patients.
2.28. Medical Withdrawal -- The medically managed, gradual, voluntary and therapeutic withdrawal of a patient from medication-assisted treatment, agreed upon by the patient and appropriate staff.
2.29. Medication Error -- An error in administering a medication to an individual and includes when any of the following occur: the wrong medication is given to an individual; the wrong individual is given the medication; the wrong dosage is given to an individual; medication is given to an individual at the wrong time or not at all; or the wrong method is used to administer the medication.
2.30. Mental Health Professional -- A person licensed under Chapter 30 of the West Virginia Code as a psychiatrist, a social worker, a psychologist, or a professional counselor.
2.31. Misuse or Non-Medical Use -- All uses of a prescription medication or substance other than those that are directed by a health care provider acting within his or her scope of practice and used by an intended patient within the law and the requirements of good medical practice.
2.32. Opioid Antagonist -- A drug that blocks opioids reception by attaching to the opioid receptors without activating them thereby causing no opioid effect and blocking full agonist opioids.
2.33. Opioid Drug -- Any substance or drug having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug or substance having such addiction-forming or addiction-sustaining liability including, but not limited to, heroin, morphine, codeine, oxycodone, hydrocodone, fentanyl, oxymorphone, hydromorphone, methadone, and any natural, semi-synthetic or synthetic drug that acts primarily through mu opioid receptor in the brain.
2.34. Opioid Treatment Services -- Treatment and services provided by an OBMAT program that uses medication-assisted treatment medications as a part of its treatment modality. Opioid treatment services may be provided through outpatient, residential, or hospital settings; and may include medical maintenance, medically supervised withdrawal, and detoxification, various levels of medical, psychosocial, and other types of care, detoxification treatment, and maintenance treatment.
2.35. Peer Recovery Support Services -- Non-clinical recovery support services that are recipient directed and delivered by peers who have life experience with recovery.
2.36. Pharmacotherapy -- The treatment of disease or medical condition through the administration of drugs.
2.37. Physical Dependence -- A state of biologic adaption that is evidenced by a class-specific withdrawal syndrome when the substance is abruptly discontinued or the dose rapidly reduced, or by the administration of an antagonist.
2.38. Physician Assistant -- A person who meets the qualifications set forth in W. Va. Code §§30-3E-1, et seq., and is licensed pursuant to that article to practice medicine under the supervision of a physician or podiatrist licensed by the West Virginia Board of Medicine or the West Virginia Board of Osteopathic Medicine.
2.39. Physician Extender -- A medical staff person other than a program physician, functioning within his or her scope of practice to provide medical services to patients admitted to OBMAT programs. Physician extenders approved for employment at an OBMAT program include advanced practice registered nurses and physician assistants. Registered nurses and licensed practical nurses are not authorized to act as physician extenders in a MAT program, although they may work within the program in other capacities.
2.40. Plan of Correction -- A written description of the actions the OBMAT program intends to take to correct and prevent the reoccurrence of violations of a statute, rule, regulation or policy identified by the designated state oversight agency during an investigation or survey.
2.41. Plan of Education -- An approved continuing education plan that results in a physician, counselor or physician extender attaining professional competence in the field of substance use disorder treatment.
2.42. Positive Drug Screen -- A test that results in the presence of any drug or substance listed in this rule or any other drug or substance prohibited by the OBMAT program. The presence of medication which is part of the patient’s individualized plan of care or treatment strategy shall not be considered a positive test.
2.43. Primary Counselor -- The individual designated by the OBMAT program to serve as a consultant and advisor to a patient on a regular basis. The primary counselor may be an addiction counselor and shall be included as a member of the patient’s interdisciplinary team for opioid treatment programs.
2.44. Program Physician -- Any physician licensed in this state pursuant to Chapter 30 of the West Virginia Code, designated and approved by the medical director to prescribe and monitor medication-assisted treatment for patients admitted to an OBMAT program. The medical director may serve as a program physician.
2.45. Random Drug Testing -- Approved medical screening and testing of patients for drugs, alcohol, or other substances that shall be conducted so each patient of an OBMAT program has a statistically equal chance of being selected for testing at random, unscheduled times.
2.46. Recovery -- A process of change through which an individual improves his or her health and wellness, lives a self-directed life, and strives to achieve his or her full potential.
2.47. Relapse Prevention Plan -- A plan of action developed by a patient and his or her health and wellness, lives a self-directed life, and strives to achieve his or her full potential.
2.48. Titration -- The gradual increasing or decreasing of doses of a medication-assisted treatment medication to the minimal level clinically required for maintenance.
W. Va. Code R. § 71-28-3 State Opioid Treatment Authority
3.1. The Inspector General has designated the Bureau of Behavioral Health and Health Facilities as the state opioid treatment authority.
W. Va. Code R. § 71-28-4 State Oversight Authority; Powers and Duties
4.1. The Inspector General has designated the Office of Health Facility Licensure and Certification (OHFLAC) within the Office of Inspector General to act as the state oversight agency, as that agency is defined in this rule. OHFLAC shall provide regulatory oversight, regulation, and inspection of OBMAT programs.
4.2. The powers and duties of the state oversight agency include, but are not limited to, the following:
4.2.1. Develop and implement rules regarding the registration and oversight of OBMAT programs;
4.2.2. Accept applications and fees for registration of OBMAT programs and conduct all necessary reviews, inspections, or investigations in order to determine whether a registration should be issued;
4.2.3. Issue initial, amended, and renewed registration to an OBMAT program upon determination that the program is qualified;
4.2.4. Perform both scheduled and unscheduled site visits to OBMAT programs when necessary and appropriate;
4.2.5. Monitor the activities of all OBMAT programs to ensure compliance with all state and federal requirements;
4.2.6. Receive and act upon complaints;
4.2.7. Inspect allegations of rule violations, unauthorized activities, or other conduct that may affect the health, safety, or well-being of patients or employees of an OBMAT program;
4.2.8. Assist an OBMAT program in developing a plan of correction in order to correct any noted violations or deficiencies;
4.2.9. Deny, revoke, or suspend the registration of an OBMAT program in accordance with the applicable administrative proceedings; and
4.2.10. Perform all other necessary actions related to the registration, monitoring, investigating, and oversight of OBMAT programs.
W. Va. Code R. § 71-28-5 Applicability
5.1. Hospitals that are licensed under Hospital Licensure, W. Va. Code R. §§71-12-1, et seq., and behavioral health facilities that are licensed under Behavioral Health Centers Licensure, W. Va. Code R. §§71-25-1, et seq., and which provide outpatient medication-assisted treatment as defined in W. Va. Code §16B-13-2 are subject to the provisions of this rule and to all other relevant federal and state registration requirements as specified by the Director.
5.2. An OBMAT program directly operated by the Department of Veterans Affairs, the Indian Health Service or any other department or agency of the United States is not required to obtain a state registration.
5.3. Crisis Stabilization Units (CSU) are not required to obtain a state registration if the following conditions are met:
5.3.1. Treatment at the CSU is utilized only for detoxification or initiation of medication-assisted treatment, or both, or for treatment of a co-occurring disorder of an of an existing medication-assisted treatment client; and
5.3.2. The CSU must document the referral of the patient to an appropriate MAT program upon discharge from the CSU.
W. Va. Code R. § 71-28-6 Registration for OBMAT programs; Fees and Costs
6.1. General Registration Provisions.
6.1.1. No person, partnership, association, or corporation may operate an OBMAT program in the state of West Virginia without first obtaining a registration pursuant to W. Va. Code §16B-13-4 and this rule.
6.1.2. A registration is valid only for the location and persons named and described in the application.
6.1.3. Each OBMAT program location shall be registered separately, regardless of whether the program is operated under the same business name or management as another program.
6.1.4. Before operating an OBMAT program within the state of West Virginia, a program shall:
6.1.4.a. Be registered and qualified by the United States Department of Health and Human Services under the Controlled Substances Act, 21 U.S.C. §§ 801, et seq. (1970), as amended, to dispense medication-assisted treatment medications in the treatment of substance use disorder, if the OBMAT program dispenses MAT medications; and
6.1.4.b. Obtain from the Director a registration authorizing the operation of the OBMAT program and facility.
6.1.5. Each registered OBMAT program shall designate a medical director. The medical director shall be responsible for the operation of the program in accordance with the requirements of this rule. Nothing within this rule prevents an OBMAT program from designating two co-medical directors.
6.1.6. If the ownership of an OBMAT program changes, the new owner shall notify the Director within 10 days and immediately apply for a new registration. The new owner’s application for a registration is valid for three months from the date the application is received by the director.
6.1.7. The OBMAT program shall notify the Director within 30 days prior to a change in name or physical address of the program and request an application form for a registration amendment.
6.1.8. If there is a change in the medical director, the OBMAT program must comply with provisions 6.1.5. and 7.3.4. of this rule.
6.1.9. If the OBMAT program is not in substantial compliance with this rule but does not pose a significant risk to the health, safety, or rights of the patients, a registration expiring in less than one year may be issued.
6.1.10. The Director or his or her designee may enter the premises of any practice, office, or facility if the Director has reasonable belief that it is being operated or maintained as an OBMAT program without a registration.
6.1.11. If the owner, medical director, or other person in charge of a registered OBMAT program or of any other unregistered practice, office, or facility which the Director has reasonable belief is being operated as an OBMAT program refuses entry pursuant to this rule, the Director shall petition the Circuit Court of Kanawha County or the county in which the program is located for an inspection warrant.
6.1.12. If the Director finds on the basis of an inspection that any person, partnership, association, or corporation is operating as an OBMAT program without a registration, the OBMAT program shall apply for a registration within 10 days.
6.1.13. An OBMAT program that fails to apply for a registration is subject to the penalties established in this rule.
6.1.14. An OBMAT program shall surrender an expired, revoked, or otherwise invalid registration to the Director upon written demand.
6.2. Registration Application.
6.2.1. An OBMAT program shall submit an application for registration to the Director not less than 30 days and not more than 60 days prior to the anticipated initiation of services.
6.2.2. All applications for an initial, provisional, or renewal registration shall include and provide the documentation specified in W. Va. Code §16B-13-4 in addition to the following:
6.2.2.a. Documentation of all current federal accreditations, certifications and authorizations; and
6.2.2.b. A description of the organizational structure of the OBMAT program.
6.3. Registration Fees and Inspection Costs.
6.3.1. All applicants for an initial, provisional, or renewal registration shall be accompanied by a non-refundable fee in the amount required by this rule. In addition to the set fee, the annual renewal fee shall be adjusted on the first day of June of each year to correspond with increases in the consumer price index. The Office of Health Facility Licensure and Certification shall post the annual consumer price index increases on its website located at: http://oig.wv.gov/OHFLAC. The base amounts for initial, provisional, and renewal fees are as follows:
6.3.1.a. Initial registration fee - $250;
6.3.1.b. Provisional registration fee - only for existing programs as of the effective date of this rule seeking an initial registration of $250; and
6.3.1.c. Renewal registration fee:
6.3.1.c.1. 1-50 patients - $250 plus adjustment;
6.3.1.c.2. 51-100 patients - $300 plus adjustment;
6.3.1.c.3. 101-200 patients - $400 plus adjustment; or
6.3.1.c.4. 201 or more patients - $500 plus adjustment.
6.3.2. An OBMAT program shall pay for the cost of the initial inspection prior to issuance of a registration. The fee for the initial inspection of an OBMAT program is $250 plus the actual cost of the inspection and shall be billed to the applicant.
6.4. Initial Inspection and Issuance of Registration.
6.4.1. Upon receipt of an application for an initial registration to operate as an OBMAT program, the Director shall make an inspection of the program and facility in order to determine whether the program has satisfied all of the federal and state requirements for registration.
6.4.2. If the inspection reveals violations, deficiencies, or shortcomings on the part of the OBMAT program, the Director shall advise the program of the deficiencies. The program may submit one or more written plans of correction demonstrating compliance with the corrections required. The Director may conduct follow-up inspections if required.
6.4.3. Following an application review, onsite inspection or inspections, and approval of subsequent plans of correction as may be needed, if there is substantial compliance with the requirements of this rule and the cost of the inspection has been paid as required by this rule, the Director shall issue a registration in one of three categories:
6.4.3.a. An initial registration, valid for 12 months from the date of issuance, shall be issued to programs establishing a new service found to be in substantial compliance on initial review with regard to policy, procedure, facility, and recordkeeping regulations;
6.4.3.b. A provisional registration shall be issued when an OBMAT program seeks a renewal or is an existing program as of the effective date of this rule and is seeking an initial registration, and the OBMAT program is not in substantial compliance with this rule but does not pose a significant risk to the rights, health, and safety of a consumer. It shall expire not more than six months from the date of issuance, and may not be consecutively reissued; or
6.4.3.c. A renewal registration shall be issued when an OBMAT program is in substantial compliance with this rule. A renewal registration shall expire not more than 12 months from the date of issuance.
6.4.4. A registration is valid for the OBMAT program named in the application and is not transferrable or assignable.
6.5. Denial of Registration.
6.5.1. The Director, in consultation with the Inspector General, may deny an application for an initial, provisional, or renewal registration if:
6.5.1.a. The Director determines that the application is deficient in any respect;
6.5.1.b. The OBMAT program will not be or is not being operated in accordance with federal or state treatment standards, or federal or state standards, laws, and rules;
6.5.1.c. The OBMAT program will not permit an inspection or survey to proceed or will not permit timely access to records or information deemed relevant by the Director;
6.5.1.d. The OBMAT program has made misrepresentations in obtaining accreditation, certification, licensure, or registration;
6.5.1.e. The OBMAT program fails to designate a medical director at the program; or
6.5.1.f. The OBMAT program fails to have an established process for maintaining current, accessible patient records from admission through discharge.
6.5.2. If the Director, in consultation with the Inspector General, determines not to issue a registration, the Director shall notify the applicant in writing of the denial and the basis for the decision. Following the denial, the program must follow closure procedures in this rule, including notification to existing patients.
6.5.3. An OBMAT program shall surrender an expired, revoked, or otherwise invalid registration to the Director upon written demand.
6.5.4. An OBMAT program may protest the denial of an initial, provisional, or renewal registration pursuant to the administrative procedures in this rule.
6.6. Renewal or Amended Registrations.
6.6.1. The OBMAT program shall submit an application for a renewal registration to the Director not less than 60 days prior to the expiration of the current registration. After the Director receives a complete renewal application with the required fee, the existing registration shall not expire until the new registration has been issued or denied.
6.6.2. The program shall notify the Director 30 days prior to a change in the name, geographic location or services of a program or a change in the substantial nature of the OBMAT program and simultaneously shall apply for an amended registration.
W. Va. Code R. § 71-28-7 Administrative Organization and Management of OBMAT Programs
7.1. Each OBMAT program shall identify a program administrator, medical director, program physician(s), and, if applicable, counseling staff.
7.2. Program Administrator.
7.2.1. The administrator of an OBMAT program shall have at a minimum a bachelor’s degree in an appropriate area of study and a minimum of two years of experience in the fields of substance use disorders, behavioral health, or health care administration; or a master’s degree in an appropriate professional area of study; or six years of experience in the fields of substance use disorders, behavioral health, or health care administration; or be a program physician.
7.2.2. The administrator is responsible for the day-to-day operation of the OBMAT program in a manner consistent with the laws and regulations of the United States Department of Health and Human Services, Drug Enforcement Administration (DEA), and the laws and rules of the state of West Virginia.
7.2.3. Duties of the administrator include:
7.2.3.a. Contribution to the development of policies and procedures for operation of the program;
7.2.3.b. Maintenance and security of the facility;
7.2.3.c. Employment, credentialing, evaluation, scheduling, training, and management of staff;
7.2.3.d. Protection of patient rights;
7.2.3.e. Conformity of the program with federal confidentiality regulations, namely, 42 C.F.R. Part 2;
7.2.3.f. Security of medication storage and safe handling of medications;
7.2.3.g. Contribution to the management of the facility budget;
7.2.3.h. Implementation of program policies and procedures;
7.2.3.i. Communication with the medical director; and
7.2.3.j. Maintenance of documentation regarding the medical director’s training and experience in a file that is current and readily available at all times.
7.3. Medical Director.
7.3.1. Each OBMAT program shall have a designated medical director. The medical director shall
7.3.1.a. Have a full, active, and unencumbered license to practice allopathic medicine or surgery from the West Virginia Board of Medicine or to practice osteopathic medicine or surgery from the West Virginia Board of Osteopathic Medicine in this state.
7.3.1.b. Complete the requirements for Drug Addiction Treatment Act of 2000, Pub. L. 106-310, 114 Stat. 1101, Title XXXV, §§ 3501, et seq., (2000) if he or she prescribes partial opioid agonist; and
7.3.1.c. Demonstrate experience in substance use disorder treatment or medication-assisted treatment or have a written plan, not to exceed 12 months, to attain competence in substance use disorder treatment or medication-assisted treatment.
7.3.2. The medical director shall maintain authority over the medical aspects of treatment offered by the OBMAT program. The medical director is responsible for:
7.3.2.a. Operation of all medical aspects of the treatment program;
7.3.2.b. Administration and supervision of all medical services;
7.3.2.c. Compliance with all applicable federal, state, and local laws, rules, and regulations;
7.3.2.d. Maintenance of his or her continuing medical education in the field of substance use disorder treatment and medication-assisted treatment on a documented and ongoing basis;
7.3.2.e. Approval of the basic and continuing education programs of all staff employed by or volunteering at the OBMAT program; and
7.3.2.f. Determination of the ability of the program physicians and physician extenders to work independently within the applicable scope of practice.
7.3.3. The medical director shall ensure regulatory compliance and carry out those duties specifically assigned to the medical director. Nothing in this rule prohibits an OBMAT from designating co-medical directors.
7.3.4. Within 10 days after the withdrawal or termination of the medical director, the owner or owners of the program shall notify the Director of the identity of another medical director for the program. Another licensed physician shall assume the duties of the medical director on a temporary basis, not to exceed 60 days, until a new medical director is identified and begins work at the program. The interim physician may be another owner of the program or a program physician employed by or associated with the program.
7.4. Professional Medical Staff.
7.4.1. The OBMAT program may employ and use program physicians, physician extenders, and other health care professionals working within their scope of practice who have received sufficient education, training, experience, or any combination thereof, to enable that person to perform the assigned functions. All physicians, nurses, and other licensed professional care providers must comply with the credentialing requirements of their respective professions.
7.4.2. All physicians and physician extenders employed by the OBMAT program shall be actively licensed in West Virginia and shall have:
7.4.2.a. A minimum of one year of experience in substance use disorder treatment and medication-assisted treatment settings; or
7.4.2.b. Meet the following requirements:
7.4.2.b.1. Active enrollment in a plan of education for obtaining competence in medication-assisted treatment methods and substance use disorders that is approved by the medical director. The medical director shall certify the individual’s completion of the plan of education when, in the discretion of the medical director, it is satisfactorily accomplished; and
7.4.2.b.2. Completion of the certification, training programs or continuing education programs recommended and approved by the medical director of the OBMAT program.
7.4.3. During all hours of operation, every OBMAT program shall have an actively licensed program physician on call and available for consultation with other staff members at any time.
7.4.4. During all hours of operation, when parties are being medically treated, every OBMAT program shall have present and on duty at the program at least one of the following actively-licensed health care professionals:
7.4.4.a. Physician;
7.4.4.b. Physician assistant;
7.4.4.c. Advanced practice registered nurse; or
7.4.4.d. Registered nurse.
7.4.5. Plans of Education.
7.4.5.a. Program physicians and physician extenders operating under a plan of education shall be supervised by the medical director at a frequency appropriate for the qualifications and experience of the employee.
7.4.5.b. The program administrator or his or her designee shall document when an employee undertakes a plan of education, maintain all records regarding plans of education for the professional medical staff, and ensure that the medical director monitors and certifies satisfactory completion of each plan of education.
7.4.5.c. The medical director shall approve each plan of education and the ability of a program physician or physician extender to work independently within his or her scope of practice. The medical director shall document an employee’s successful completion of a plan of education and approval to provide services on an independent basis within his or her scope of practice.
7.4.5.d. The state opioid treatment authority may request periodic documentation of continuing education during the probationary period and afterward if the documentation provided at the end of that period is not satisfactory.
7.5. Counseling Staff.
7.5.1. Counseling through an OBMAT program shall be provided by counseling staff that meet the qualifications as described in W. Va. Code §16B-13-5(d).
7.5.2. The OBMAT program shall assign or make referral to a primary counselor or counseling service for each patient to contribute to the appropriate treatment plan for the patient and to monitor patient progress.
7.5.3. Each OBMAT program’s policies and procedures shall ensure sufficient counseling staff to meet the needs of the patient population and to comply with the requirements of this rule.
7.5.4. Any unlicensed or uncertified counseling staff employed or used on a referral basis by the program shall be directly supervised by a licensed or certified professional or advanced alcohol and drug counselor, or both. At a minimum, the supervisor shall provide at least one hour of supervision per 20 hours of direct service. Supervision may be group in nature but must consist of case consultation and discussion or clinical training rather than administrative oversight.
7.5.5. Newly employed counselors and other non-physician clinical staff without experience in a recovery-based OBMAT program shall receive initial training lasting at least 12 hours as prescribed in a facility practice and procedures guide and consisting of, at a minimum, the following:
7.5.5.a. Substance use disorder overview;
7.5.5.b. Characteristics of the substance use disorder population;
7.5.5.c. Program policy and procedure;
7.5.5.d. Confrontation, de-escalation, and anger management;
7.5.5.e. Current strategies for identifying and treating alcohol, cocaine, and other substance use disorders; and
7.5.5.f. Identification of co-occurring behavioral health or developmental disorders.
7.5.6. An experienced counselor newly employed from another MAT program may be exempt from the mandatory initial training required by this rule, if the mandatory initial training has been received within the previous two years. If training was received more than two years prior to employment, six hours of training shall be provided.
7.5.7. Counselors with less than one year of full-time experience in the field of substance use disorder treatment and medication-assisted treatment shall accompany an experienced counselor at all times for a minimum of two weeks before seeing persons served without immediate and constant supervision.
7.6. Unlicensed Clinical Staff and Volunteers.
7.6.1. An OBMAT program may employ unlicensed clinical staff and utilize volunteers to assist in the operation of the program and facility. The program shall develop and implement policies and procedures which specify the roles and responsibilities of each unlicensed employee and volunteer. Documentation of the responsibilities, training, and other obligations of an unlicensed clinical staff employee or volunteer shall be included in the personnel file of the employee or volunteer.
7.6.2. All unlicensed clinical staff and volunteers shall receive direct on-site supervision and must be provided with assistance, directions for activity and support.
W. Va. Code R. § 71-28-8 Environment and Operation
8.1. Service Operation Schedule.
8.1.1. Programs, especially sole practitioners of OBMAT programs, shall ensure that services are not interrupted due to staff vacations by having qualified, temporary coverage.
8.1.2. Except as otherwise provided herein, the program’s days of operation shall meet the needs of the OBMAT program patients served.
8.1.3. The program shall notify the patients receiving medication-assisted treatment services in writing at least 30 days in advance of their intent to permanently change service hours.
8.2. Payments for services rendered may be made either by Medicare, West Virginia Medicaid, private insurance, or by cash as described in this rule. Prior to directly billing a patient for any MAT treatment, the OBMAT program must comply with the provisions of W. Va. Code §16B-13-5(e).
8.3. Each OBMAT program facility shall have:
8.3.1. Sufficient space and adequate equipment for the provision of all services specified in the program’s description of treatment services;
8.3.2. Clean, safe, and well-maintained patient and staff areas;
8.3.3. A secure room and lockable equipment for physical patient records or appropriate security mechanisms for electronic records, or both;
8.3.4. Private offices or areas for patient and group therapeutic meetings, sufficient in number to address the treatment needs of the population served;
8.3.5. Sufficient restrooms for the estimated patient population with areas for observation of specimen production, if necessary; and
8.3.6. Adequate parking areas.
8.4. Infection Control. The OBMAT program shall designate an infection control officer who shall develop, implement, and maintain an effective infection control program, based on a nationally recognized system of infection control guidelines, that protects the patients, their families and clinic personnel by early detection, prevention, and control of infections and communicable diseases.
W. Va. Code R. § 71-28-9 Life Safety Policies and Procedures
9.1. All OBMAT program facilities must meet all other requirements of applicable federal or state regulatory or oversight agencies.
9.2. Life Safety Policies and Procedures.
9.2.1. Each OBMAT program shall develop, implement, and maintain policies and procedures regarding the appropriate and safe administration of medical treatment. The policies and procedures shall:
9.2.1.a. Establish a current emergency plan in case the program must be closed temporarily, including how patients will be informed of these emergency arrangements; and
9.2.1.b. Ensure that there is appropriately trained staff on duty at all times who are proficient in cardiopulmonary resuscitation and reversal of opiate overdose.
9.3. Each OBMAT program shall develop, implement, and maintain policies and procedures regarding safe and effective access to the facility and staff. The policies and procedures shall:
9.3.1. Provide 24-hour, seven day-per-week access to information so that patient emergencies may be immediately addressed;
9.3.2. Require the program to display in facility offices and waiting areas the names and telephone numbers of individuals or agencies who should be contacted in case of an emergency;
9.3.3. Include an up-to-date disaster plan that specifies emergency evacuation procedures, fire drills and maintenance of fire extinguishers; and
9.3.4. Address safety and security issues for patients and staff, including training staff to handle physical or verbal threats, acts of violence, inappropriate behavior, or other escalating and potentially dangerous situations, with emphasis on when security guards or police need to be summoned.
W. Va. Code R. § 71-28-10 For-Cause Inspections; Complaints
10.1. The Director may conduct unannounced inspections of an OBMAT program for cause if the Director has received a complaint about the program or has reason to believe that the program may be operating in violation of federal or state statutes, rules, or regulations, may be providing substandard treatment or may be serving as possible source of diverted medications.
10.2. Any person may file a complaint with the Director alleging violation of applicable laws, rules, or policies by an OBMAT program. A complaint shall identify the OBMAT program by name and state the nature of the complaint.
10.3. At the time of any onsite investigation activities, the investigator shall notify the medical director or program administrator at the OBMAT program of the general reason for the investigation.
10.4. Within 15 working days of the investigation, the Director shall provide to the medical director or program administrator at an OBMAT program a written report of the results of the investigation. The report shall specify any deficiency found and the rule that forms the basis for the violation.
10.5. The Director may permit the OBMAT program to develop a plan of correction to address any noted violations or deficiencies. The Director may advise and consult with the medical director, program administrator, or other personnel at an OBMAT program to assist with a plan of correction.
10.6. The Director, in consultation with the Inspector General, may impose a civil money penalty, suspend, or revoke a registration or take such other action as deemed appropriate to address any violations or deficiencies. In the event the Director determines that the continued operation of the OBMAT program is a threat to the health, welfare and safety of its patients or employees, the Director, in consultation with the Inspector General, may issue an order immediately closing the facility pursuant to applicable administrative procedures.
10.7. Upon completion of the investigation, the Director shall notify the complainant whether the allegations have been substantiated and how to obtain a copy of the report.
10.8. The Director shall keep confidential any information that could reasonably lead to the identification of a complainant and of any patient involved in the complaint or investigation. The Director shall not disclose such information without the written consent of the complainant or patient. The Director shall delete any identifying information before disclosure of investigative information to the public.
10.9. 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.
W. Va. Code R. § 71-28-11 Plans of Correction
11.1. Within 10 working days after receipt of the inspection report, the program administrator or medical director at an OBMAT program shall submit to the Director for approval a written plan to correct all deficiencies that are in violation of this rule or statute, unless a waiver or variance is requested by the OBMAT program and granted by the Director. The plan of correction shall specify:
11.1.1. Any action taken, or procedures proposed to correct the deficiencies and prevent their reoccurrence;
11.1.2. The date of completion or each action taken or to be taken; and
11.1.3. The signature of the medical director, or his or her designee, or other executive officer of the program.
11.2. The proposed plan of correction shall be approved, modified, or rejected by the Director in writing. The OBMAT program may make modifications to the plan at a later date in conjunction with the Director.
11.3. The Director shall state the reasons for rejection or modification of any plan of correction.
11.4. The program administrator or medical director shall submit a revised plan of correction to the Director within 10 working days of receipt of a rejection by the Director.
11.5. The OBMAT program shall immediately correct a violation that severely risks the health or safety of a patient or other person.
11.6. The Director shall determine if satisfactory corrections have been made and advise the program medical director of any compliance or continued deficiencies in writing.
11.7. The Director may provide consultation to the applicant in obtaining compliance with this rule.
W. Va. Code R. § 71-28-12 Waivers and Variances
12.1. The Director, in consultation with the Inspector General, may grant a waiver or variance to the provisions of this rule under any of the following circumstances:
12.1.1. A strict application of the rule clearly would be impractical and if any alternate arrangements are not detrimental to the health or safety of the patients or employees of the program;
12.1.2. A waiver, variance, or extension of a provisional registration is necessary under extraordinary circumstances or otherwise to protect public health;
12.1.3. The waiver or variance serves the best interests of patient safety and quality of care; or
12.1.4. A variance is granted pursuant to W. Va. Code §16B-13-5(e).
12.2. Any waiver or variance approved by the Director shall be in writing.
12.3. All waivers or variances shall be reviewed at least annually by the designated state oversight agency.
W. Va. Code R. § 71-28-13 Reports and Records
13.1. Inspection Reports and Records.
13.1.1. The Director shall keep on file a report of any inspection, survey, or investigation of an OBMAT program or any program sponsor, owner, employee, volunteer, or patient thereof.
13.1.2. Information in reports or records shall be available to the public except for the following:
13.1.2.a. Information regarding complaints and subsequent investigations that is deemed confidential by any provision of this rule or applicable state or federal laws;
13.1.2.b. Information of a personal nature from a patient or personnel file; or
13.1.2.c. Information required to be kept confidential by state or federal law.
13.1.3. A report of an inspection or investigation made public shall also state whether a plan of correction has been submitted to or approved by the Director.
13.2. Statistical Reports and Records.
13.2.1. The OBMAT program shall file a quarterly statistical report with the Director on a form prescribed by the Director, which includes the following information:
13.2.1.a. The total number of patients receiving medication-assisted treatment, broken down by gender;
13.2.1.b. The numbers of in-state patients and out-of-state patients;
13.2.1.c. The number of patients admitted to the program;
13.2.1.d. The number of patients discharged from the program; and
13.2.1.e. The reason for discharge, including:
13.2.1.e.1. Termination or disqualification;
13.2.1.e.2. Voluntary withdrawal; or
13.2.1.e.3. An unexplained reason.
13.2.1.f. The number of pregnant patients.
13.3. Incident Reporting and Adverse Events.
13.3.1. Each OBMAT program shall develop and implement policies and procedures for documenting, investigating, taking corrective action, and tracking instances of known adverse events or incidents.
13.3.2. Incidents or adverse events may include:
13.3.2.a. Program medication errors or other known medication errors where a patient suffers an adverse effect;
13.3.2.b. Completed patient suicide and suicide attempts;
13.3.2.c. Drug or substance-related hospitalization of a patient related to the treatment being provided;
13.3.2.d. Patient death or serious injury due to trauma, suicide, medication error, or unusual circumstances;
13.3.2.e. Harm to family members or others from ingesting a patient’s medication;
13.3.2.f. Selling drugs or substances on the premises;
13.3.2.g. Medication diversion;
13.3.2.h. Harassment or abuse, including physical, verbal, sexual, and emotional, of patients by staff;
13.3.2.i. Theft, burglary, break-in, or similar incident at the program;
13.3.2.j. Physical violence leading to injury;
13.3.2.k. Significant disruption of services due to disaster such as fire, storm, flood, or another occurrence; and
13.3.2.l. Incidents that result in negative community reaction.
13.3.3. Incidents or adverse events shall be reviewed on a quarterly basis by the medical director who may choose to make recommendations to the administration, governing body or owner or owners and a designated safety committee regarding the improvements in the process to prevent further incidents.
13.3.4. The program shall assure in the event of an incident or adverse event that:
13.3.4.a. The incident or adverse event is fully documented and appropriately reported to the correct state agencies as necessary;
13.3.4.b. There is prompt investigation and review of the situation surrounding the incident or adverse event;
13.3.4.c. Timely and appropriate corrective action is taken; and
13.3.4.d. Ongoing monitoring of any corrective action takes place until effectiveness of the action is established.
13.3.5. Within seven days of an incident or adverse event, the program shall file a report with the state oversight agency consisting of the following:
13.3.5.a. The action or actions implemented to prevent the reoccurrence of the incident or adverse event;
13.3.5.b. The time frames for the action or actions to be implemented;
13.3.5.c. The person or persons designated to implement and monitor the action or actions; and
13.3.5.d. The strategies for the measurements of effectiveness to be established.
W. Va. Code R. § 71-28-14 Staff Training and Credentialing
14.1. Each OBMAT program shall ensure that all physicians, physician assistants, advanced practice registered nurses, registered nurses, licensed practical nurses, counselors, psychologists, marriage, and family therapists, social workers, and other licensed or certified professional care providers comply with the credentialing requirements of their respective professions, obtain and maintain a current license, and complete all continuing education requirements of the licensing board, W. Va. Code §16B-13-5(d) and this rule.
14.2. Clinical staff of an OBMAT program may include employees, independent contractors, or both. The OBMAT program shall be responsible for ensuring that staff and contractors comply with all provisions of this rule. All clinical staff members and volunteers shall complete initial and continuing education and training that is specific to their job function, their interactions with patients, the pharmacotherapies to be used at the program, and the patient populations to be served.
14.3. Each OBMAT program shall maintain confidential individual personnel files for every clinical staff member or volunteer, that shall contain, at a minimum:
14.3.1. The application for employment, contract, or request to work as a volunteer;
14.3.2. Documentation of the date of employment;
14.3.3. Identifying information and emergency contacts;
14.3.4. Documentation of completion of program orientation, internal training, and a copy of the practitioner’s active license;
14.3.5. Documentation of all licenses, certifications, or other credentials;
14.3.6. Documentation relating to performance evaluation, supervision of job performance, disciplinary actions, and termination summaries; and
14.3.7. Detailed job descriptions.
14.4. The OBMAT program shall have a policy that delineates procedures governing disciplinary actions and non-voluntary termination of staff or volunteers.
W. Va. Code R. § 71-28-15 Medication Security, Storage, Administration, and Documentation
15.1. Medication Security. Each OBMAT program that chooses to obtain, and store medication shall develop and implement policies and procedures that comply with all relevant federal and state laws, rules, and regulations regarding the storage, administration, documentation, and management of medications kept at the facility, if applicable, including measures that:
15.1.1. Ensure responsible handling and secure storage of all medications kept at the program;
15.1.2. Ensure responsible documentation of all medications received, stored, administered, and dispensed at the program; and
15.1.3. Ensure that only authorized personnel may access the storage areas where any medications are kept.
15.2. Approved Medications. An OBMAT program shall use only those medication-assisted treatment medications that are approved by the Food and Drug Administration under section 505 of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. § 355, for use in the treatment of substance use disorders.
15.3. Prescriptions and Dosage. The maintenance dose of medication prescribed for a patient shall be individually determined. Adjustments upward or downward in dosage shall not be made either as punishment or reward but shall be justified by the clinical documentation of the patient’s condition, subjectively and objectively.
15.4. Prescriptions for medication-assisted treatment medications shall include full identifying information for the patient, including full name and physical address; diagnosis code for which the medication is being prescribed; drug name, strength, dosage form, quantity and directions for use; the OBMAT program’s registration number; and the prescribing program physician’s regular DEA number and DATA 2000 identification number, if applicable.
W. Va. Code R. § 71-28-16 Diversion Control Plan
16.1. Each OBMAT shall have a plan to manage medication diversion as a result of its policy and procedures.
16.1.1. The diversion control plan shall be reviewed and approved by the medical director and program physicians at OBMAT programs at a minimum of every two years.
16.1.2. The diversion control plan shall minimize the diversion of medication-assisted treatment medications to illicit use. The plan shall include:
16.1.2.a. Continuous clinical and administrative monitoring of the potential for an actual diversion including an investigation, tracking, and monitoring system of incidents of diversion; and
16.1.2.b. Proactive planning and procedures for problem identification, correction, and prevention.
16.1.3. The diversion control plan shall contain, at a minimum, a random call-back program with mandatory compliance, which shall be in addition to the regular schedule of program visits.
W. Va. Code R. § 71-28-17 Patient Rights
17.1. Each OBMAT program shall develop and implement policies and procedures which guarantee the following rights to patients:
17.1.1. To be informed, both verbally and in writing, of program rules and regulations and patients’ rights and responsibilities;
17.1.2. To receive treatment provided in a fair and impartial manner free from unlawful discriminatory practices pursuant to W. Va. Code §16B-17-9, including the right of a patient to choose a counselor who accepts the patient’s insurance;
17.1.3. To receive an individualized plan of care or treatment strategy. The individualized plan of care or treatment strategy shall be maintained in the patient’s chart;
17.1.4. To receive medications required by the individualized plan of care or treatment strategy on a schedule developed in accordance with applicable federal requirements and approved guidelines and protocols that is the most accommodating and least intrusive and disruptive method of treatment for most patients;
17.1.5. To be informed that random drug testing of all patients shall be conducted during the course of treatment as required in this rule, and that any refusal to participate in a random drug test shall be considered a positive test. The patient shall be informed of the consequences of having a positive drug screen result;
17.1.6. To be informed about potential interactions with and adverse reactions to other substances, including alcohol, other prescribed medications, over-the-counter pharmacological agents, other medical procedures, and food;
17.1.7. To be informed about the financial aspects of treatment, including the consequences of nonpayment of required fees;
17.1.8. To ensure confidentiality in accordance with federal regulations, 42 C.F.R. Part 2, and the Health Insurance Portability and Accountability Act of 1996, as amended;
17.1.9. To be informed of the extent of confidentiality, including the conditions under which information can be released without consent, the use of identifying information for the purpose of program evaluation, billing, and statutory requirements for reporting abuse;
17.1.10. To give informed consent prior to being involved in research projects and the right to retain a copy of the informed consent form;
17.1.11. To receive full disclosure of information about treatment and medication, including accommodation for those who do not speak English, or who are otherwise unable to read an informed consent form; and
17.1.12. Inform each patient about all treatment procedures, services, and other policies and procedures throughout the course of treatment.
17.2. The OBMAT program shall provide notice of how to file a complaint and grievance procedures which shall be displayed in the patient care area in a conspicuous place and easily available to patients. The notice should include program rules, consequences of noncompliance and procedures for filing a complaint or grievance.
17.3. It is the responsibility of the program to make every attempt before a patient is discharged to accommodate the patient’s desire for medical withdrawal or to be referred to an alternative treatment program as appropriate. Administrative withdrawal shall be used only as a sanction of last resort.
17.4. Every person admitted to an OBMAT program shall receive program orientation. The orientation shall be made verbally within the first 30 days of treatment. Information provided in the orientation shall be given to the patient in writing at the time the decision is made to admit the patient, regardless of his or her condition, and shall include a formal agreement of informed consent to be signed by the patient.
17.5. Program orientation shall include the following:
17.5.1. An explanation of the rights and responsibilities of the patient.
17.5.2. An explanation of the services and activities provided by the OBMAT program, either onsite or by referral, including:
17.5.2.a. Expectations and rules;
17.5.2.b. Confidentiality policy;
17.5.2.c. Toxicological screening and random drug-testing policies;
17.5.2.d. Interventions; and
17.5.2.e. Various discharge criteria, including, but not limited to, administrative and medical withdrawal policies and procedures; and
17.5.3. A description of how the individualized plan of care or treatment strategy and coordination of care agreement will be developed and the patient’s expected participation in the plan of care or treatment strategy.
17.6. Upon admission, each patient shall receive the following written information:
17.6.1. Signs and symptoms of overdose and when, where, and how to seek emergency assistance;
17.6.2. A formal agreement of informed consent to be signed by the patient;
17.6.3. A signed copy of the coordination of care agreement;
17.6.4. Patient’s rights;
17.6.5. Confidentiality policies; and
17.6.6. Information on alternative methods available for treatment of substance use disorder and the potential benefits and risks. The state opioid treatment authority is responsible for providing informational materials to be used in discussing alternative treatments.
W. Va. Code R. § 71-28-18 Patient Records
18.1. Each OBMAT program shall establish and maintain a recordkeeping system that is adequate to document and monitor patient care. The system shall comply with all federal and state reporting requirements relevant to medications approved for use in treatment of substance use disorder.
18.2. All patient records shall be maintained for a minimum of five years from the time that the documented treatment is provided. In the event a patient is a juvenile, the records shall be kept for a minimum of five years from the time the patient reaches the age of 18.
18.3. All patient records shall be kept confidential in accordance with all applicable federal and state requirements.
18.4. OBMAT program policies and procedures should ensure security of all records including electronic records, if any.
18.5. Individual patient records may include, but are not limited to:
18.5.1. Identifying and basic demographic data and the results of the screening process;
18.5.2. Documentation of program compliance with the program’s policy regarding prevention of multiple admissions to any medication-assisted treatment programs;
18.5.3. All physical and biopsychosocial assessments during the course of treatment;
18.5.4. Medical reports including results of the physical assessment; family medical history; review of systems; laboratory reports, including results of required toxicology screens; results obtained from the Controlled Substances Monitoring Program (CSMP) database; and progress notes, including documentation of current dose and other dosage data;
18.5.5. Dated case entries of all significant contacts with patients;
18.5.6. The individualized plans of care or treatment strategies, and any amendments, reviews, or changes to the plans;
18.5.7. Coordination of care agreements signed by the patient, program physician and primary counselor;
18.5.8. Documentation from the Controlled Substance Monitoring Program or an out-of-state equivalent that the OBMAT program made a good faith effort to review whether the patient is enrolled in any other OBMAT program;
18.5.9. A record of correspondence with the patient, family members, and other individuals and a record of each referral for services and its results;
18.5.10. A record of correspondence with other health care providers of the patient;
18.5.11. Consent forms, releases of information, prescription documentation, travel, and employment; and
18.5.12. A closing summary, including reasons for discharge and any referral. In the case of death, the cause of death, if known, shall be documented.
18.6. Documentation of Patient Contact. The primary counselor or medical staff, or both is responsible for documentation of significant contact with each patient, which shall be filed in the patient record and include a description of:
18.6.1. The reason for or nature of the contact;
18.6.2. The patient’s current condition;
18.6.3. Significant events occurring since prior contact;
18.6.4. The assessment of patient status; and
18.6.5. A plan for action or further treatment.
W. Va. Code R. § 71-28-19 Admission Criteria and Admission Process
19.1. Each OBMAT program shall develop, implement, and maintain policies and procedures designed to ensure that patients are admitted to maintenance treatment only after a determination has been made that the person meets the qualifications for admission.
19.2. Any patient seeking admittance to the OBMAT program shall undergo an initial medical assessment to determine whether the person meets the criteria for admission. The determination of admission eligibility shall be made using accepted medical and biopsychosocial criteria.
19.3. The patient desiring admission for treatment through the use of a medication-assisted treatment medication must be at least 16 years of age. For those patients who are unemancipated minors, consent for treatment is required from a parent or guardian. 19.4 Admission to the OBMAT program may be allowed to the following groups with a high risk of relapse without the necessity of a positive drug test or the presence of objective symptoms:
19.4.1. The patient is a pregnant woman with a history of substance use disorder;
19.4.2. The patient is a prisoner or has been released from a correctional facility within six months;
19.4.3. The patient is a former program patient who successfully completed treatment but believes that he or she is at risk of imminent relapse;
19.4.4. The patient is an HIV patient with a history of intravenous drug use; or
19.4.5. The patient has been deemed as high risk by the medical director or treating physician.
19.5. A patient enrolled in an OBMAT program shall not be permitted to obtain treatment in any other OBMAT program except in exceptional circumstances and only as provided in section 21 of these rules.
19.6. The program practitioner shall ensure that each patient voluntarily chooses maintenance treatment and that all relevant facts concerning the use of medication-assisted treatment medications are clearly and adequately explained to the patient. The program practitioner shall ensure that each newly admitted patient provides informed written consent to treatment.
19.7. If a patient was previously known to be discharged from treatment at another program, the admitting OBMAT program following patient consent shall contact the previous OBMAT program or programs for treatment history.
W. Va. Code R. § 71-28-20 Multiple Program Enrollments
20.1. A patient enrolled in an OBMAT program shall not be permitted to obtain treatment in any other OBMAT program except in exceptional circumstances.
20.1.1. If the medical director or program physician of the OBMAT program in which the patient is enrolled determines that an exceptional circumstance exists, the patient may be granted permission to seek treatment at another OBMAT program.
20.1.2. The justification for finding exceptional circumstances shall be noted in the patient’s individualized plan of care or treatment strategy and medical chart both at the OBMAT program in which the patient is enrolled and at the OBMAT program that provides the additional treatment.
20.2. When there is reason to believe a patient is receiving treatment at an opioid treatment program, the OBMAT program shall obtain a written consent for release of information from the patient to check the records of opioid treatment programs to ensure that the patient is not currently enrolled in those programs as well. The request for information may be made by telephone, fax, or e-mail. The release of information shall state that only prior admissions may be the subject of inquiry, not contacts without admission. The OBMAT program shall protect patient confidentiality at all times and with all procedures used in acquiring medical or health information.
20.3. Results of the multiple-program check shall be contained in the patient chart.
20.4. A multiple program enrollment check shall be repeated if the patient is discharged and readmitted at any time.
W. Va. Code R. § 71-28-21 Controlled Substances Monitoring Program Database
21.1. Each OBMAT program shall comply with policies and procedures developed by the designated state oversight agency and the West Virginia Board of Pharmacy to allow physicians treating patients through an OBMAT program access to the Controlled Substances Monitoring Program database maintained by the West Virginia Board of Pharmacy.
21.2. Program practitioners shall access the database in accordance with the requirements of W. Va. Code §16B-13-5(j).
W. Va. Code R. § 71-28-22 Required Services
22.1. Each OBMAT program shall provide or make referral to medical, counseling, recovery, and other assessment and treatment services as necessary.
22.2. Each OBMAT program shall require every patient to undergo a documented biopsychosocial assessment by a program counselor or other qualified practitioner.
22.3. The OBMAT program shall complete a post-admission assessment, an initial individualized or plan of care or treatment strategy and, if applicable, a coordination of care agreement.
22.4. Random drug testing of all patients shall be conducted during the course of treatment as required in this rule. Each OBMAT program must provide adequate testing or analysis for drugs of abuse in accordance with generally accepted clinical practice.
22.5. Each OBMAT program must provide adequate substance use disorder counseling, either on-site or by referral, to each patient as clinically necessary and at the minimum levels as required by this rule.
22.6. Each OBMAT program shall maintain current policies and procedures that reflect the special needs of patients who are pregnant. Prenatal care and other gender-specific services of pregnant patients must be provided either by the OBMAT program or by referral to appropriate health care providers. Services rendered to pregnant patients shall comply with the requirements of this rule.
22.7. Each OBMAT program shall provide or make referrals for counseling on preventing exposure to, and the transmission of, HIV and hepatitis C for each patient admitted or re-admitted to maintenance or detoxification treatment. Services rendered to patients with HIV and hepatitis C disease shall comply with the requirements of this rule.
22.8. Each OBMAT program that provides required services by referral or other agreement at offsite facilities or providers shall:
22.8.1. Establish a strong working relationship with several treatment providers offering different levels of treatment;
22.8.2. Be able to document a referral or other agreement with a local hospital, health care facility or other provider that provides offsite services for the OBMAT program;
22.8.3. Obtain a signed consent form from each patient to approve open communication with the offsite provider and the OBMAT program; and
22.8.4. Routinely provide and obtain updates from offsite providers to consistently monitor treatment attendance and progress.
22.9. Each OBMAT program shall provide or make referrals for each patient to obtain contraceptive drugs, devices, or procedures.
W. Va. Code R. § 71-28-23 Counseling
23.1. Each OBMAT program shall provide substance use disorder counseling, by a counselor of the patient’s choice, to every patient as is clinically appropriate. Counseling sessions should encourage and guide the patient to a lifestyle that does not include abuse or misuse of prescribed and illicit medications, drugs, or other substances. Counseling sessions are essential to promote and guide the patient to a more productive lifestyle of abstinence from illicit medications or drugs.
23.2. The counseling shall be provided by a professional as described in this rule, qualified by education or training to assess the biopsychosocial background of patients, to contribute to the appropriate individualized treatment plant for the patient, and to monitor patient progress. The primary counselor shall develop and implement the biopsychosocial portions of the patient’s individualized plan of care or treatment strategy, in coordination with the medical staff and program physician.
23.3. Counseling sessions, which may be conducted via telehealth, shall be provided according to generally accepted best practices and shall be offered:
23.3.1. At least weekly during the first 90 days of treatment;
23.3.2. At least twice per month during the remainder of the first year of treatment; and
23.3.3. Thereafter, counseling sessions shall take place as indicated in the patient’s individualized plan of care or treatment strategy.
23.4. All counseling sessions shall be documented in the OBMAT program’s patient record and shall include a plan for action or further treatment that addresses the goals of the individualized plan of care or treatment strategy.
23.5. Where indicated, the OBMAT program will provide or document a referral for family members or significant others to counseling.
23.6. If counseling is not directly provided through the OBMAT program, the counselor(s) shall still meet the credentialing requirements pursuant to this rule and verification of all sessions must be documented in the MAT patient record.
W. Va. Code R. § 71-28-24 Post-Admission Assessment
24.1. Each OBMAT program shall develop, implement, and maintain current policies and procedures, patient protocols, treatment plans, or treatment strategies, and profiles for the treatment of patients seeking treatment for medication-assisted treatment.
24.2. The program physician or physician extender shall conduct an assessment meeting the following requirements.
24.2.1. The assessment may include, but not limited to, an appropriate history and physical, mental status exam, substance use history, appropriate lab tests, pregnancy test for women of childbearing years, toxicology tests for drugs and alcohol, hepatitis B and hepatitis C screens, an inquiry to and report from the Controlled Substances Monitoring Program database, an inquiry whether the patient is being treated at any other opioid treatment OBMAT program, the diagnosis of all conditions, including a diagnosis of substance use disorder, including signs and symptoms, the dates, amounts, and dosage forms for any drugs prescribed, dispensed, and administered, and any other tests as necessary or appropriate in the treatment provider’s discretion; and
24.2.2. For other than the toxicology tests for drugs and alcohol, appropriate history, substance abuse history, hepatitis B and hepatitis C screens, and the pregnancy test, the physician may satisfy the assessment requirements by reviewing records from a physical examination of the patient that was conducted by a physician within a reasonable period of time prior to the visit not to exceed 30 days and a copy of the report by the referring physician and any medical records from other providers, if applicable.
24.2.3. The post-admission assessment may include laboratory tests conducted by the OBMAT program or by other reliable sources.
24.3. Continuing Assessments. Subsequent patient assessments shall include periodic patient evaluations. Patients shall be seen at reasonable intervals based upon the individual circumstance of the patient. Periodic assessment is necessary to determine compliance with the dosing regimen, effectiveness of treatment plan, and to assess how the patient is responding to the prescribed medication. Once a stable dosage is achieved and urine or other toxicology tests are free of illicit drugs, less frequent office visits may be initiated for patients on a stable dose of the prescribed medication who are making progress toward treatment objectives. Continuation or modification of therapy shall depend on the physician’s evaluation of progress toward stated treatment objectives.
W. Va. Code R. § 71-28-25 Individualized Plan of Care or Treatment Strategy
25.1. Delivery of patient care and treatment interventions shall be based on the needs identified in the individualized plan of care or treatment strategy.
25.2. Within 30 days after admission of a patient, the OBMAT program shall develop an individualized plan of care or treatment strategy and attach it to the patient’s chart. The individualized plan of care or treatment strategy shall be developed pursuant to the guidelines and protocols established by the American Society of Addiction Medicine (ASAM), the Center for Substance Abuse Treatment (CSAT) and the National Institute on Drug Abuse (NIDA), the American Association for the Treatment of Opioid Dependence (AATOD), or such other nationally recognized authority approved by the Director. The individualized plan of care or treatment strategy shall include a recovery model based upon the generally approved guidelines and protocols.
25.3. The individualized plan of care or treatment strategy shall be reviewed by the program physician, primary counselor, and patient at least every 90 days and documented in the patient record. A revised plan of care or treatment strategy may be implemented with each review. After one year of successful treatment, the individualized plan of care or treatment strategy shall be reviewed annually, or more often based on the program physician and primary counselor’s discretion and updated as appropriate.
25.4. The individualized plans of care or treatment strategies shall be developed by the patient, the program physician or physician extender and primary counselor, with input as appropriate from other health care providers.
25.5. All individualized plans of care or treatment strategies may include, but are not limited to:
25.5.1. Documentation of the patient’s diagnoses; the proposed medical treatment and counseling; medication dosages and administration;
25.5.2. A requirement that the patient regularly attend and participate in the OBMAT program, both medical and counseling aspects, as determined necessary by the staff and patient;
25.5.3. The identification of triggers for misuse of substances;
25.5.4. The development and use of coping strategies for each trigger;
25.5.5. The development of a detailed relapse prevention plan;
25.5.6. Meaningful follow-up on any identified behavioral health issues;
25.5.7. Follow-up medical or physical issues as necessary;
25.5.8. Referral for a vocational evaluation, formal or informal, as appropriate;
25.5.9. A plan to achieve financial stability and independence, where appropriate;
25.5.10. A requirement that the patient abstain from use of illicit substances, abuse of prescription substances, or other substances of abuse;
25.5.11. Documentation of other patient or familial issues as relevant and appropriate and the proposed means of addressing such issues;
25.5.12. The success of the patient’s treatment, initiatives and goals;
25.5.13. A description of services and their frequency to be provided for the patient and primarily directed to achieve the expected goals and outcomes;
25.5.14. The results from drug tests; and
25.5.15. Such other information as recommended by the guidelines and recovery model utilized for the patient.
25.6. With the patient’s permission, the OBMAT program shall request complete medical records from other providers and maintain the records in the patient’s medical record.
25.7. Coordination of Care Agreement.
25.7.1. If a coordination of care agreement is required, it shall be signed by the patient, program physician and primary counselor. If a change of program physician or primary counselor takes place, a new agreement must be signed.
25.7.2. The coordination of care agreement shall be reviewed and updated at least annually. If the coordination of care agreement is reviewed, but not updated, the review shall be documented in the patient’s record.
25.7.3. The coordination of care agreement shall include the following:
25.7.3.a. An authorization allowing communication between the program physician and primary counselor so that the patient may receive comprehensive and quality medication-assisted treatment;
25.7.3.b. The name and contact information for the program physician and primary counselor;
25.7.3.c. The categories of records which may be shared;
25.7.3.d. A summary of treatment and goals, diagnoses, and services to be received onsite or by referral;
25.7.3.e. Current medications being prescribed, including dosage, frequency, and delivery; and
25.7.3.f. Date and prescription history for medication-assisted treatment medications.
W. Va. Code R. § 71-28-26 Administrative Withdrawal
26.1. Administrative withdrawal is an involuntary withdrawal or administrative discharge from pharmacotherapy. Administrative withdrawal should be used as a last resort after the OBMAT program exhausts all efforts to address the patient’s behavior or actions that would warrant administrative withdrawal. The schedule of withdrawal may be brief, less than 30 days, if necessary.
26.2. OBMAT programs shall develop and implement policies and procedures for the involuntary termination from treatment that includes and describes the rights of the patient and the responsibilities and rights of the program.
26.3. Administrative withdrawal may result from any of the following:
26.3.1. Non-payment of fees. The OBMAT program shall make every effort to consider all clinical data, including patient participation and compliance with treatment prior to initiating administrative withdrawal for non-payment. If the patient has a history of compliance and cooperation with treatment, the program shall document every effort to explore alternatives to administrative, withdrawal with the patient prior to onset of withdrawal. If necessary and unavoidable, the schedule of withdrawal shall follow protocols and guidelines of approved authorities.
26.3.2. Disruptive or adverse effect conduct. Disruptive conduct or behavior considered to have an adverse effect on the program, clinical staff, or patient population of such gravity as to justify the involuntary withdrawal and discharge of a patient. Such behaviors may include violence, threat of violence, dealing drugs, diversion of pharmacological agents, violation of peer confidentiality, repeated loitering, and failure to follow treatment plan objectives or noncompliance with program rules, policies and procedures resulting in an observable, negative impact on the program, staff, and other patients.
26.3.3. Incarceration or other confinement. The OBMAT program may work with law enforcement and corrections personnel in order to avoid mandatory withdrawal whenever possible.
26.4. The OBMAT program shall document in the patient’s individualized plan of care or treatment strategy and chart all efforts regarding referral or transfer of the patient to a suitable, alternative treatment program.
26.5. Female patients shall have a negative pregnancy screen prior to the onset of administrative withdrawal. Patients withdrawn for not presenting to the program are not required to have a pregnancy test. A patient’s refusal to take the test shall be documented. Refer to section 29.5. of this rule for administrative withdrawal for female patients with a positive pregnancy screen.
W. Va. Code R. § 71-28-27 Medical Withdrawal
27.1. Medical withdrawal occurs as a voluntary and therapeutic withdrawal in accordance with approved national guidelines. In some cases, the withdrawal may be against the advice of clinical staff or against medical advice.
27.2. The OBMAT program shall supply a schedule of dose reduction well tolerated by the patient.
27.3. The program shall offer supportive treatment, including increased counseling sessions and referral to a self-help group or other counseling provider as appropriate.
27.4. The OBMAT program shall develop and implement policies and procedures for the continuing care of each patient following the last prescription given and for re-entry to maintenance treatment if relapse occurs or if the patient should reconsider withdrawal.
27.5. Female patients shall have a negative pregnancy screen prior to the onset of medically-supervised withdrawal. Refer to section 29.5. of this rule for medical withdrawal for female patients with a positive pregnancy screen.
27.6. The program shall have in place a detailed relapse prevention plan developed by the primary counselor in accordance with the approved national guidelines and in conjunction with the patient. The prevention plan shall be given to the patient in writing prior to the administration of the final dose of medication.
W. Va. Code R. § 71-28-28 Laboratory Services; Drug Screens
28.1. All patients in the OBMAT program shall undergo monthly drug testing. Random drug testing of all patients shall be conducted during the course of treatment as required in this rule.
28.2. Collection and Testing.
28.2.1. OBMAT programs shall work carefully with toxicology testing kits or federally certified laboratories to ensure valid, appropriate results of toxicological screens.
28.2.2. Each OBMAT program shall have the capability of obtaining medication blood levels when clinically indicated or through random or monthly drug testing of all patients.
28.2.3. Urine drug screening and other adequately tested toxicological procedures shall be used as an aid in monitoring and evaluating a patient’s progress in treatment.
28.2.4. Drug screening policies and procedures shall be determined on an individualized basis for each patient, subject to the following requirements:
28.2.4.a. A patient receiving medication-assisted treatment medication maintenance services must have at least two random urine drug screens per month for the first 12 months of medication-assisted treatment. After 12 months of medication-assisted treatment, and if the patient is compliant with program rules and treatment requirements, a patient is required to have one random urine drug screen every 90 days. After 36 months of medication-assisted treatment, and if the patient is compliant with program rules and treatment requirements, random drug screens shall be at the discretion of the provider but at least once per year.
28.2.4.b. A record of urine drug screens shall be kept in the patient record.
28.2.4.c. When using urine as a screening mechanism, each OBMAT program shall develop and implement policies and procedures which may include observed testing to minimize the chance of patient adulterating or substituting another individual’s urine.
28.2.4.d. OBMAT programs shall develop and implement policies and procedures to minimize misidentification of urine specimens and to ensure that the tested specimens can be traced to the donor patient.
28.2.5. Drug screenings shall include toxicological analysis for drugs of abuse, including but not limited to:
28.2.5.a. Buprenorphine, including in ratio to Norbuprenorphine, if as clinically indicated;
28.2.5.b. Opiates including oxycodone at common levels of dosing;
28.2.5.c. Methadone, medication-assisted treatment medications or any other medication used by the program as an intervention for that patient;
28.2.5.d. Benzodiazepines;
28.2.5.e. Cocaine, including its metabolites, if clinically indicated;
28.2.5.f. Meth-amphetamine/amphetamines;
28.2.5.g. Tetrahydrocannabinol, delta-9-tetrahydrocannabinol, dronabinol, including its metabolites, if clinically indicated, or other similar substances; or
28.2.5.h. Other drugs or substances as determined by community standards, regional variation or clinical indication, such as carisoprodol or barbiturates.
28.2.6. Collection and testing shall be done in a manner that assures a method of confirmation for positive results and documents the chain of custody of the collection.
28.2.7. When necessary and appropriate, breathalyzers or other testing equipment may be used to screen for possible alcohol abuse.
28.2.8. Each OBMAT program shall document both the results of toxicological tests and the follow-up therapeutic action taken in the patient record.
28.2.9. Each OBMAT program shall ensure that program physicians demonstrate competence in the interpretation of “false negative” and “false positive” laboratory results as they relate to physiological issues, differences among laboratories and factors that impact the absorption, metabolism and elimination of substances.
28.2.10. The program physician or physician extender shall thoroughly evaluate a positive toxicological screen for any potentially licit substance such as benzodiazepines, carisoprodol, barbiturates, and amphetamines. The program shall verify that the patient has been prescribed these medications by a licensed physician of physician extender for a legitimate medical purpose; and
28.2.11. If a patient can produce prescriptions or other evidence of a legitimate prescription, such as current medication bottles that are fully labeled, the interdisciplinary team shall consider the patient’s individual situation and the possibility that he or she may be dismissed from the care of his or her physician if the physician discovers that the patient is in an OBMAT program. The program physician shall make the ultimate decision as to the patient’s continuing care in the program and the circumstances of that care.
28.2.12. Nothing contained in this rule shall preclude any OBMAT program from administering any additional drug tests it determines necessary.
28.3. Test Results.
28.3.1. Absence of medication-assisted treatment medication prescribed by the program for the patient is evidence of possible medication diversion. Whenever there is evidence of possible medication-assisted treatment medication diversion, the patient shall be re-evaluated by the program physician at the OBMAT program, and the individualized plan of care or treatment strategy shall be adjusted accordingly.
28.3.2. Special precautions shall be taken when a patient has both sedatives and buprenorphine in his or her urine. This requires immediate discussion with the patient about the dangers and shall be noted in the patient’s record.
W. Va. Code R. § 71-28-29 Special Populations
29.1. Concurrent Alcohol and Polysubstance Abuse.
29.1.1. Each OBMAT program shall address, where appropriate, misuse of alcohol and other non-opioid substances within the context of the medication-assisted therapy effort.
29.1.2. The OBMAT program shall ensure that its staff is fully trained and knowledgeable regarding current effective strategies for treating alcohol, illicit drug use, and other drug misuse.
29.1.3. Ongoing polysubstance use is not a reason for discharge unless the patient refuses recommended treatment. The interdisciplinary team shall consider the patient’s condition and address the situation from a clinical perspective and in accordance with guidelines and protocols from approved authorities.
29.1.4. Each OBMAT program shall have a policy regarding treatment of comorbid disorders such as psychiatric and medical disorders. The goal of the treatment shall be to provide treatment for these disorders in as seamless a fashion as possible, maximizing patient convenience and compliance with appointments and recommendations.
29.2. Behavioral Health Needs.
29.2.1. Each OBMAT program shall ensure that patients with behavioral health needs are identified through the evaluation process and referred for appropriate treatment.
29.2.2. At all phases of treatment, the OBMAT program shall monitor patients during medical withdrawal and recovery for symptoms of behavioral illness.
29.2.3. Each OBMAT program shall establish linkages with licensed behavioral health providers in the community or in the program’s facility.
29.2.4. Each OBMAT program may provide psychotropic medication management onsite by appropriately trained medical professionals. Individualized treatment plans of care shall describe the goals of psychotropic medication management, which shall be reviewed regularly. The patient’s chart and individualized plan of care or treatment strategy shall document regular contact with the prescribing physician or physician extender, or both, for the distinct purpose of monitoring prescribed psychotropic medications if such medications are prescribed.
29.3. HIV Patients.
29.3.1. The OBMAT program shall educate all patients regarding HIV/AIDS, testing procedures, confidentiality, reporting, follow-up care, safer sex, social responsibilities and sharing of intravenous equipment.
29.3.2. The program shall establish linkages with HIV/AIDS treatment programs in the community.
29.4. Chronic Pain Patients.
29.4.1. Each OBMAT program shall ensure that physicians practicing at the facility are knowledgeable in the treatment and management of substance use disorder in the context of chronic pain and pain management. The program may not prohibit a patient diagnosed with chronic pain from receiving medication for either maintenance or withdrawal in a program setting.
29.4.2. Each OBMAT program shall ensure continuity of care and communication between programs or physicians regarding patients receiving treatment in both an OBMAT program and a facility or physician’s office for purposes of pain management, with the patient’s written permission. If a patient refuses permission for the two entities to communicate and coordinate care, the program shall document refusal and may make clinically appropriate decisions regarding continuation in treatment.
29.5. Pregnant Patients.
29.5.1. Pregnant women seeking and needing treatment shall be enrolled in the OBMAT program and provided treatment in accordance with guidelines and protocols from approved authorities.
29.5.2. The OBMAT program shall ensure referrals for every pregnant patient who does not have an obstetrical provider. Care for the pregnant patient with a substance use disorder should be co-managed by the OBMAT program and the patient’s obstetrical provider. The OBMAT program shall have agreements in place with the patient’s obstetrical provider, including informed consent procedures that ensure exchange of pertinent clinical information regarding compliance with the recommended plan of medical care.
29.5.3. With respect to pharmacotherapy for pregnant women with active opioid use disorder in medication-assisted therapy, the program shall ensure that:
29.5.3.a. Maintenance medication levels shall be maintained at the lowest possible dosage level that is a medically therapeutic dose as determined by the medical director or program physician taking the pregnancy into account.
29.5.3.b. The initial medication-assisted treatment dose for a newly admitted pregnant patient and the subsequent induction and maintenance dosing strategy reflect the same effective dosing protocols used for all other patients;
29.5.3.c. The dose is monitored carefully to supply increased or split dose if it becomes necessary; and
29.5.3.d. If a pregnant patient elects to withdraw from medication-assisted treatment against medical advice, the program shall inform the patient of the risks of withdrawal to the patient and the effects on the pregnancy.
29.5.4. The OBMAT program shall document referral for follow-up and primary care for the mother and infant.
29.5.5. If a pregnant patient is discharged, the OBMAT program shall identify the physician to whom the patient is being discharged. If a provider is not available, a referral shall be made to a Comprehensive Behavioral Health Center. Information regarding discharge for any reason, including an inability to refer, shall be retained in the clinical record.
W. Va. Code R. § 71-28-30 Registration Denials, Revocations, and Suspensions
30.1. Grounds for Denial, Revocation or Suspension.
30.1.1. The Director, in consultation with the Inspector General, may deny, revoke, or suspend a registration issued pursuant to this rule if any provisions of federal or state law or this rule are violated. The Director, in consultation with the Inspector General, may revoke a registration and prohibit all program physicians associated with that OBMAT program from practicing at the program location based upon the findings and results of an annual, periodic, complaint, or other inspection and evaluation. The period of suspension for the registration of an OBMAT program shall be prescribed by the Director but may not exceed one year.
30.1.2. The Director, in consultation with the Inspector General, may deny, revoke, or suspend an OBMAT program registration for one or more of the following reasons:
30.1.2.a. The Director makes a determination that fraud or other illegal action has been committed by any owner of the OBMAT program.
30.1.2.b. The OBMAT program has violated federal, state, or local law relating to registration, building, health, fire protection, safety, sanitation, or zoning;
30.1.2.c. The OBMAT program engages in practices that jeopardize the health, safety, welfare, or clinical treatment of a patient;
30.1.2.d. The OBMAT program has failed or refused to submit reports or makes records available as requested by the Director;
30.1.2.e. An OBMAT program has refused to provide access to its location or records as requested by the Director;
30.1.2.f. An OBMAT program’s medical director has knowingly and intentionally misrepresented actions taken to correct a violation;
30.1.2.g. An owner or medical director of an OBMAT program concurrently operates an unregistered OBMAT program;
30.1.2.h. A program physician or any owner knowingly operates, owns, or manages an unregistered OBMAT program that is required to be registered;
30.1.2.i. The owners of an OBMAT program fail to apply for a new registration for the program upon a change of ownership and operate the program under the new ownership;
30.1.2.j. A program physician or any owner acquires or attempts to acquire a registration for an OBMAT program through misrepresentation or fraud or procures or attempts to procure a registration for an OBMAT program for any other person by making or causing to be made any false representation; or
30.1.2.k. The OBMAT program fails to have a medical director practicing at the program location as required by this rule.
30.2. Effect of Denial, Revocation, or Suspension.
30.2.1. If a registration for an OBMAT program has been revoked, the Director, in consultation with the Inspector General, may stay the effective date of the revocation if the medical director, owner or owners, and administrator of the program can show that the stay is necessary to ensure appropriate referral and placement of patients.
30.2.2. If the registration of an OBMAT program is denied, revoked, or suspended, no person, firm, association, or corporation may operate the program as an OBMAT program as of the effective date of the denial, revocation, or suspension. The owners of the OBMAT program are responsible for removing all signs and symbols identifying the premises as an OBMAT program within 30 days form the date of the denial, revocation, or suspension.
30.2.3. If a registration for an OBMAT program has been denied, revoked, or suspended the program must supply, at a minimum, a copy of the following information to the Director;
30.2.3.a. A closure notice to be mailed to all active patients meeting the guidelines set forth by its respective medical board;
30.2.3.b. The date the closure letter will be mailed to all active patients;
30.2.3.c. The number of active patients to receive the closure notice;
30.2.3.d. A Class II legal advertisement that complies with the requirements of article 3, chapter 59 of the West Virginia Code regarding the program closure, including the dates the notice will appear and the name of the newspaper; and
30.2.3.e. Contact information the program has supplied to patients who may need help locating a new treating physician or program.
30.2.4. Upon the effective date of the denial, revocation, or suspension the medical director of the OBMAT program shall advise the Director and the West Virginia Board of Pharmacy of the disposition of all drugs located on the premises. The disposition is subject to the supervision and approval of the Director and the DEA. Drugs that are purchased or held by an unregistered OBMAT program may be deemed adulterated.
30.2.5. If the registration of an OBMAT program is revoked or suspended, no person named in the registration documents of the program, including persons owning or operating the OBMAT program, may apply to own, register, or operate another OBMAT program for five years after the date of revocation or suspension, either individually or as part of a group practice, firm, association, or corporation.
30.2.6. If an OBMAT program registration is denied or revoked, a new application for registration shall be considered by the Director, if, when and after the conditions upon which denial or revocation was based have been corrected and evidence of this fact has been furnished. A new registration may then be granted after proper inspection has been made and the Director makes a written finding that all provisions of this article and rules promulgated pursuant to this article have been satisfied.
W. Va. Code R. § 71-28-31 Penalties and Equitable Relief
31.1. Grounds for Penalties and Injunctions.
31.1.1. Any person, partnership, association, or corporation which establishes, conducts, manages, or operates an OBMAT program without first obtaining a registration therefore or which violates any provisions of this law or rule shall be assessed a civil money penalty by the Director, in consultation with the Inspector General, in accordance with this rule.
31.1.2. Each day of continuing violation after notification of the infraction shall be considered a separate violation.
31.1.3. If the OBMAT program fails to timely file reports required by section 13 of this rule, the Director, in consultation with the Inspector General, may impose a civil monetary penalty not to exceed $1,000 per day.
31.1.4. If the OBMAT program’s owner or owners, medical director, and administrator knowingly and intentionally misrepresents actions taken to correct a violation, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $10,000 and revoke or deny the OBMAT program’s registration.
31.1.5. If an owner or owners or medical director of an OBMAT program concurrently operates an unregistered OBMAT program, the Director, in consultation with the Inspector General, may impose a civil money penalty upon the owner or owners or medical director, or both, not to exceed $5,000 per day.
31.1.6. If the owner of an OBMAT program that requires a registration under this article fails to apply for a new registration for the program upon a change of ownership and operates the program under the new ownership, the Director, in consultation with the Inspector General, may impose a civil money penalty not to exceed $5,000.
31.1.7. If a program physician knowingly operates, owns or manages an unregistered OBMAT program that is required to be registered pursuant to this article; knowingly prescribes or dispenses or causes to be prescribed or dispensed, controlled substances in an unregistered OBMAT program that is required to be registered; or obtains a registration to operate an OBMAT program through misrepresentation or fraud; procures or attempts to procure a registration for an OBMAT program for any other person by making or causing to be made any false representation, the Director, in consultation with the Inspector General, may assess a civil money penalty of not more than $20,000. The penalty may be in addition to or in lieu of any other action that may be taken by the Director, In consultation with the Inspector General, or any other board, court or entity.
31.2. The Director, in consultation with the Inspector General, may deny an OBMAT program’s application for registration or application for renewal registration; revoke or suspend a registration; order an admissions ban or reduction in patient census for one or more of the following reasons:
31.2.1. The Director makes a determination that fraud or other illegal action has been committed;
31.2.2. The program has violated federal, state, or local law relating to building, health, fire protection, safety, sanitation, or zoning;
31.2.3. The program conducts practices that jeopardize the health, safety, welfare, or clinical treatment of a patient;
31.2.4. The program has failed or refused to submit reports, comply with the documentation requirements of this rule, or make records available as requested by the Director or his or her designee; or
31.2.5. A program has refused to provide access to its location or records as requested by the Director, or his or her designee.
31.3. Notwithstanding the existence or pursuit of any other remedy, the Inspector General may, in the manner provided by law, maintain an action in the name of the State for an injunction against any person, partnership, association or corporation to restrain or prevent the establishment, conduct, management, or operation of any OBMAT program or violation of any provisions of this rule without first obtaining a registration therefore in the manner hereinbefore provided.
31.3.1. The Inspector General may also seek injunctive relief if the establishment, conduct, management, or operation of any OBMAT program, whether registered or not, jeopardizes the health, safety, or welfare of any or all of its patients.
31.3.2. In determining whether a penalty is to be imposed and in fixing the amount of the penalty, the Director, in consultation with the Inspector General, shall consider the following factors:
31.3.2.a. The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient has resulted, or could have resulted, from the OBMAT program’s actions or the actions of the medical director or any treating physician employed by or associated with the program, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.
31.3.2.b. What actions, if any, the medical director or treating physician took to correct the violations;
31.3.2.c. Whether there were any previous violations at the OBMAT program; and .31.3.2.d. The financial benefits that the OBMAT program derived from committing or continuing to commit the violation.
31.4. Upon finding that a physician has violated the provisions of this rule, the Director shall provide notice of the violation to the applicable professional licensing board.
W. Va. Code R. § 71-28-32 Administrative Due Process
32.1. Before any OBMAT program registration is denied, suspended, or revoked, written notice shall be given to the owner or owners of the program, stating the grounds of the denial, suspension, revocation, or penalty and the date set for any enforcement action.
32.1.1. The notice shall be sent by certified mail to the owner or owners at the address where the OBMAT program concerned is located.
32.1.2. Within 30 days of receipt of the notice, the owner or owners may submit a request for an administrative hearing or an informal meeting to address and resolve the findings.
32.1.3. The OBMAT program and its owner or owners shall be entitled to be represented by legal counsel at the informal meeting or at the hearing at their own expense.
32.1.4. All of the pertinent provisions of W. Va. Code §§29A-5-1, et seq., and W. Va. Code R. §69-1-1, et seq., shall apply to and govern any hearing authorized by this rule.
32.1.5. If an owner fails to request a hearing within the time frame specified, he or she shall be subject to the full penalty imposed.
32.1.6. The filing of a request for a hearing does not stay or supersede enforcement of the final decision or order of the Director. The Director, in consultation with the Inspector General, may, upon good cause shown, stay such enforcement.
W. Va. Code R. § 71-28-33 Administrative Appeals and Judicial Review
33.1. Any owner of an OBMAT program or Inspector General who disagrees with the final administrative decision as a result of the hearing may, within 30 days after receiving notice of the decision, appeal the decision of the Board of Review to the West Virginia Intermediate Court of Appeals.
33.1.1. The filing of a petition for appeal does not stay or supersede enforcement of the final decision of the Director or order of the Board of Review. An appellant may apply to the West Virginia Intermediate Court of Appeals for a stay of or to supersede the final decision or order.
33.1.2. The West Virginia Intermediate Court of Appeals may affirm, modify, or reverse the final administrative decision. The owner or owners, or the Inspector General may appeal the court’s decision to the Supreme Court of Appeals.
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