West Virginia Code of State Rules › Agency 69 - Health And Human Resources › Title 69 - LEGISLATIVE RULE DEPARTMENT OF HEALTH AND HUMAN RESOURCES › Series 69-02 - Implementation Of The Omnibus Health Care Act › Section 69-2-7 - Violations and Show Cause Proceedings; Penalties

Current through Register Vol. XLI, No. 28, July 12, 2024
7.1. In the event that any health care
				provider or other legal entity violates any provision of the Act, of this rule,
				of any other rule duly promulgated by the Secretary under the provisions of the
				Act, or any plan, order, or directive issued under the provisions of the Act or
				any such rule, then the Secretary may assess a civil penalty as provided by the
				Act and may order that the health care provider by removed from any list of
				approved providers for whose services a department or division may pay in the
				future.
7.2. Upon determining that
				there is probable cause to believe that a health care provider or other legal
				entity may be knowingly engaging in such a violation, the Secretary shall
				provide such health care provider or other legal entity with written notice
				which shall state the nature of the alleged violation and the time and place of
				a hearing at which such health care provider or other legal entity shall appear
				to show cause why a civil penalty or removal from any list, or both, should not
				be imposed. Nothing in this rule shall limit the Secretary's authority to
				resolve informally any alleged violation, by such means as stipulation, agreed
				settlement, consent order, default, or other appropriate action.
7.3. At the hearing, the Secretary shall
				arrange to have the evidence in support of the allegations presented and shall
				afford the health care provider or other legal entity an opportunity to
				cross-examine the state's witnesses and shall afford the health care provider
				or other legal entity an opportunity to present testimony and enter evidence in
				support of its position. The State shall bear the burden of proving a violation
				of the Act.
7.4. The hearing shall
				be conducted in accordance with the administrative hearings provisions of W.
				Va. § 29A-5-1 et seq., and applicable procedural rules promulgated by the
				Secretary.
7.5. If, after reviewing
				the record of such hearing, the Secretary determines, by a preponderance of the
				evidence, that such health care provider is in violation of the Act, of this
				rule, or any other rule promulgated under the Act, or any plan, order or
				directive issued under the Act or such rule, the Secretary may assess a civil
				penalty as provided by the Act and may remove a health care provider from any
				list of approved providers for whose services a department of division may pay
				in the future. In exercising his or her discretion in fixing the amount of the
				penalty as well as determining whether to remove a health care provider from a
				list, the Secretary shall take into account the degree of willfulness shown in
				the violation, the nature and type of the violation, the monetary amount
				involved and whether the health care provider or other legal entity had
				personally gained by the violation, the degree of harm, if any, suffered by a
				beneficiary of any state supported program due to the violation, and such other
				factors as may be relevant to a particular case.
7.6. Any health care provider or other legal
				entity proceeded against under this section 7 shall receive notice in writing
				by certified mail of the Secretary's decision, which decision shall contain a
				statement of the penalty imposed, if any, whether the health care provider is
				to be removed from any applicable list and the Secretary's findings of fact and
				conclusions of law in support of the exercise of Secretary's discretion in the
				manner stated. The penalty and the removal may be imposed immediately by the
				Secretary without regard to whether or not an appeal is filed: Provided, that
				the Secretary, in his or her discretion, may grant a stay of enforcement or
				collection of the penalty or removal pending the resolution of an
				appeal.
7.7. As provided for by W.
				Va. Code, §
									16-29D-8,
				the health care provider or other legal entity may appeal the Secretary's
				decision. Any appeal shall be taken and be handled in accordance with W. Va.
				Code, '29A-5-4.
				The circuit court's review shall include a review of the amount of the penalty
				and any removal of a health care provider from a department's or division's
				approved provider list. The circuit court may enter a stay against the
				collection or enforcement of any penalty or removal order after a hearing on
				the request for stay: Provided, that such hearing may not be conducted on an ex
				parte basis.
7.8. If the health
				care provider or other legal entity penalized or ordered removed from a
				department's or division's approved provider list either loses an appeal or
				does not appeal such penalties or removal and fails to pay the amount of the
				penalty to the Secretary within thirty days or if the health care provider
				continues to act in a manner contrary to his or her or its removal, the
				Attorney General may institute a civil action in the circuit court of Kanawha
				County to recover the amount of the penalty or to seek an injunction. Such
				civil action shall be handled in an expedited manner by the circuit court and
				shall be assigned for hearing at the earliest possible date.
7.9. The remedies set forth in this section
				are intended only for violations of the Act and shall not affect any other
				contractual relationship between any department or division and a health care
				provider or other legal entity.
7.10. Any health care provider removed from a
				department's or division's approved provider list pursuant to this section 7
				may petition the Secretary for reinstatement to such list after one-hundred and
				eighty (180) days from his removal. Any appeal by the provider of the
				Secretary's decision shall be taken and handled in accordance with W. Va. Code,
				§
									29A-5-4.
7.11. Any patient-identifying information or
				records obtained by the Secretary or his or her employees or agents, or by any
				other department or division subject to the Act, during any investigation or
				enforcement of the Act, this rule, or any other rule duly promulgated by the
				Secretary under the provisions of the Act, shall be kept confidential and,
				shall not be released to the public, and shall be treated in accordance with
				all applicable privacy laws.