West Virginia Code of State Rules › Agency 64 - Health › Title 64 - LEGISLATIVE RULE WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN RESOURCES › Series 64-85 - Alzheimer's/Dementia Special Care Units And Programs › Section 64-85-11 - Penalties

Current through Register Vol. XLI, No. 28, July 12, 2024
11.1. Civil
				Penalties.
11.1.a. For violations of this
				rule, the secretary shall administer the civil penalties in the West Virginia
				Code and rules applicable to the facility.
11.1.b. Upon completion of a report of
				inspection, the secretary 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 secretary 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
				secretary 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 secretary unless the corrective actions specified by the secretary are
				implemented in an acceptable manner.
11.1.c. The secretary shall issue all
				citations in writing and shall include at least the following:
11.1.c.1. The penalty;
11.1.c.2. 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.c.3. The basis upon which the secretary
				assessed the penalty and selected the amount of civil money penalty, as well as
				the basis for the calculations.
11.1.d. The name of any resident jeopardized
				by the violation shall not be specified in the citation.
11.1.e. 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.f. In both determining to assess a civil
				penalty and in fixing the amount of civil penalty to be imposed for violations,
				the secretary shall consider the gravity of the violation, which shall include:
11.1.f.1. The degree of substantial
				probability that death or serious physical harm will result and, if applicable,
				did result from the violation;
11.1.f.2. The severity of serious physical
				harm most likely to result, and if applicable, that did result from the
				violation; and
11.1.f.3. The extent
				to which the provisions of the applicable statutes or rules were
				violated.
11.1.g. 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 secretary, within ten (10)
				business days after the issuance of the citation, the total sum of the penalty
				assessed.
11.1.h. 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
				ten (10) business days after service of the citation or specification of time
				in which violations are to be corrected, serve upon the secretary, either
				personally or by registered or certified mail, the licensee's or non-licensed
				operator's written notice pursuant to West Virginia Department of Health and
				Human Resources Administrative Rules, Rules of Procedure for Contested Case
				Hearings and Declaratory Rulings, 64CSR1.
11.1.i. The assessments for penalties and for
				costs of legal action taken under the relevant W.Va. Code for the facility
				shall have monthly interest assessed at two percent (2%) on the last day of
				each month in which occurs the thirtieth (30th) day
				after receipt of notice of the assessment or after the month in which occurs
				the thirtieth (30th) day after receipt of the
				secretary's final order following a hearing, whichever is later.
11.1.i.1. 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.j. The
				secretary shall, in a civil judicial proceeding, recover any unpaid assessment
				which :
(a) has not been contested under the
				applicable statute or rule within thirty (30) days of receipt of notice of the
				assessment; (b) has been affirmed under the applicable statute or rule and not
				appealed within thirty (30) days of receipt of the secretary's final order; or
				(c) has been affirmed on judicial review, as provided in the applicable statute
				or rule.
11.1.j.1. 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 secretary 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.