64-14-4. State Administrative Procedures.

64-14-4. State Administrative Procedures.

4.1. General Licensing Provisions.

4.1.a. Before establishing, maintaining, offering, operating or advertising an assisted living residence a person shall obtain a license authorizing the operation from the commissioner.

4.1.b. A license is valid only for the person and for the structure named in the application and on the license only, 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 residence, the licensee shall notify the commissioner.

4.1.c. If the licensee owns more than one assisted living residence, each residence shall have a separate identification.

4.1.d. 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.

4.1.e. The licensee is responsible for compliance with this rule, the terms of the assisted living residence’s license, W. Va. Code §§16-5D-1 et seq., and other relevant federal and state laws.

4.1.f. The commissioner may issue an initial or a 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 §§16-5D-1 et seq., together with the required fee. The license shall continue in effect until:

4.1.f.1. One year following the expiration date of the license;

4.1.f.2. The date of a revocation or suspension of the license pursuant to this rule and W. Va. Code §§16-5D-1 et seq., or

4.1.f.3. The date of issuance of a new license, whichever date occurs first.

4.2. Initial Licensure Application

64-14-4. State Administrative Procedures.

4.1. General Licensing Provisions.

4.1.a. Before establishing, maintaining, offering, operating or advertising an assisted living residence a person shall obtain a license authorizing the operation from the commissioner.

4.1.c. If the licensee owns more than one assisted living residence, each residence shall have a separate identification.

4.1.e. The licensee is responsible for compliance with this rule, the terms of the assisted living residence’s license, W. Va. Code §§16-5D-1 et seq., and other relevant federal and state laws.

4.1.f.1. One year following the expiration date of the license;

4.1.f.2. The date of a revocation or suspension of the license pursuant to this rule and W. Va. Code §§16-5D-1 et seq., or

4.1.f.3. The date of issuance of a new license, whichever date occurs first.

4.2. Initial Licensure Application.

4.2.a. 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 commissioner may require.

4.2.b. 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.

4.2.c. The applicant shall pay the cost of the initial licensure inspections, pursuant to W. Va. Code §16-5D-6(i) before the issuance of an initial license.

4.2.d. The applicant shall provide to the commissioner 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 commissioner, including but not limited to, reimbursement of the owners, lease payment, and monthly rates charged.

4.2.e. The applicant shall submit the application and fee at least ninety (90) days prior to the date proposed for the commencement of operations.

4.2.f. Except as specified in Subsection 4.5 of this rule, and after a satisfactory inspection to ensure compliance with this rule, the commissioner shall issue an initial license.

4.2.g. If the licensee plans to move any residents of an assisted living residence to another location owned or operated by the licensee, he or she shall apply for a license for the new location at least ninety (90) days before the move.

4.3. License Renewal.

4.3.a. The licensee shall postmark or hand deliver applications for renewal of a license to the commissioner at least ninety (90) days before the expiration date of the current license.

4.3.b. Except as specified in Subsection 4.4. of this rule, the commissioner shall issue a renewal license to an assisted living residence when the following conditions are met:

4.3.b.1. The residence is found to be in substantial compliance with this rule;

4.3.b.2. The applicant has submitted a completed application and all requested financial information; and

4.3.b.3. The residence has met all Class I standards of this rule.

4.4. Non-Issuance of Initial or Renewal License.

4.4.a. The commissioner 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.a.1. 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.a.2. The applicant or licensee has a personal history that has:

4.4.a.2.A. 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

4.4.a.2.B. A conviction of crimes related to the provision

4.3.a. The licensee shall postmark or hand deliver applications for renewal of a license to the commissioner at least ninety (90) days before the expiration date of the current license.

4.3.b. Except as specified in Subsection 4.4. of this rule, the commissioner shall issue a renewal license to an assisted living residence when the following conditions are met:

4.3.b.1. The residence is found to be in substantial compliance with this rule;

4.3.b.2. The applicant has submitted a completed application and all requested financial information; and

4.3.b.3. The residence has met all Class I standards of this rule.

4.4. Non-Issuance of Initial or Renewal License.

4.4.a. The commissioner 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.a.2. The applicant or licensee has a personal history that has:

4.4.a.2.B. 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.a.3. 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 (5) years;

4.4.a.4. 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;

4.4.a.5. The applicant, licensee or person in charge of the residence has refused the commissioner entry and access to residents and records for an inspection or survey;

4.4.a.6. 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;

4.4.a.7. The applicant, licensee or administrator has submitted false information to the commissioner during the licensure process or during the course of an inspection or survey of the residence;

4.4.a.8. 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 commissioner;

4.4.a.9. The applicant or licensee has built or renovated a residence without complying with the requirements of Subsection 4.12. of this rule;

4.4.a.10. 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

4.4.a.11. The residence has failed to receive a recommendation for licensure from the state fire marshal.

4.4.b. Before refusing to issue an initial or renewal license or revoking a license, the commissioner shall consider all available evidence at the time of the determination, including:

4.4.b.1. The history of the residence and the applicant or licensee in complying with this rule; and

4.4.b.2. 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.

4.5. Provisional License.

4.5.a. The commissioner may issue a provisional license when:

4.5.a.1. The licensee has failed to meet all the requirements of W. Va. Code §§16-5D-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

4.5.a.2. All requirements for renewal of a license are not met prior to the expiration of the previously issued license.

4.5.b. When the commissioner 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.

4.5.c. The commissioner shall not renew a provisional license.

4.5.d. If the commissioner 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 commissioner.

4.5.e. The commissioner 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.

4.6. Inspections.

4.6.a. The commissioner shall inspect an assisted living residence as necessary to carry out the intent of W. Va. Code §16-5D-1 et seq. and this rule.

4.6.b. The commissioner 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:

4.6.b.1. The application and application fee have been received and the application has been determined to be complete; and

4.6.b.2. All requested documentation has verified the readiness of the residence for an inspection.

4.6.c. The commissioner shall conduct periodic unannounced inspections to determine the residence’s continued compliance with this rule.

4.6.d. The commissioner 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 refuses entry, the commissioner 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 admittance to the premises of the suspected residence.

4.7. Complaint Investigation.

4.7.a. Any person may register a complaint with the commissioner 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, identifying the name and address of the residence.

4.7.b. The commissioner 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 an investigation.

4.7.c. The commissioner 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 commissioner.

4.7.d. Except as provided in Subdivision 4.7.e. of this subsection, the commissioner 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 commissioner 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

4.7. Complaint Investigation.

4.7.e. 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.

4.7.f. Any type of discriminatory treatment of a resident or employee by whom or on whose behalf a complaint has been submitted to the commissioner, within one hundred twenty (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.

4.7.g. If, after an investigation, the commissioner determines that the complaint has merit, he or she shall advise any injured party of the possibility of a civil remedy. In addition, residents, a resident’s family, or a legal representative or ombudsman, may also independently pursue civil remedies for violations of this rule.

4.8. Waivers.

4.8.a. The commissioner 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 residents.

4.8.b. The licensee shall submit a written request for a waiver and the request shall:

4.8.b.1. Specify the specific requirement in this rule for which the waiver is requested;

4.8.b.2. Specify the time period for which the waiver is requested;

4.8.b.3. Include specific and detailed reasons for the request;

4.8.b.4. Explain why the specific requirement cannot be complied with; and

4.8.b.5. Document that there will be no adverse effect on the residents’ health, safety, welfare, or rights if the waiver is granted.

4.9. Reports and Records.

4.9.a. The commissioner shall prepare a written report of any inspection made pursuant to this rule within fifteen (15) days of the completion of the inspection and shall mail to the licensee or administrator, as applicable, a statement of deficiencies that contain the violations of this rule.

4.9.b. 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 commissioner shall delete any information regarding a resident that would reasonably permit identification of the resident.

4.9.c. The commissioner shall provide notification to the social security administration if a residence demonstrates continued noncompliance with this rule.

4.9.d. The commissioner shall make copies of the following

4.8.b.2. Specify the time period for which the waiver is requested;

4.8.b.3. Include specific and detailed reasons for the request;

4.8.b.4. Explain why the specific requirement cannot be complied with; and

4.8.b.5. Document that there will be no adverse effect on the residents’ health, safety, welfare, or rights if the waiver is granted.

4.9. Reports and Records.

4.9.c. The commissioner shall provide notification to the social security administration if a residence demonstrates continued noncompliance with this rule.

4.9.d. The commissioner shall make copies of the following available at a reasonable cost for public inspection and upon request:

4.9.d.1. Applications and exhibits;

4.9.d.2. Inspection reports;

4.9.d.3. Reports of the results of investigations conducted in response to complaints;

4.9.d.4. A current list of the names and addresses of assisted living residences found to be in violation of this rule, including the details of each violation; and

4.9.d.5. Any other reports filed with or issued by the commissioner pertaining to the compliance of an assisted living residence with applicable laws and rules.

4.10. Plans of Correction.

4.10.a. 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 commissioner within fifteen (15) working days of receipt of the statement of deficiencies.

4.10.b. The commissioner shall require immediate correction of violations identified as constituting immediate and serious threats to the health or safety of a resident or employee.

4.10.c. For deficiencies other than those constituting immediate and serious threats, the licensee is expected to comply with the rule within sixty (60) days of the inspection, unless the commissioner waives this requirement and allows more time to correct certain types of deficiencies.

4.10.d. The plan of correction shall specify:

4.10.d.1. The violations to be corrected;

4.10.d.2. The actions taken or proposed to correct the violations and procedures to prevent their recurrence; and

4.10.d.3. 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.

4.10.e. The commissioner shall notify the licensee in writing of his or her approval, suggested modifications or rejection of the plan of correction, or any part thereof.

4.10.f. If modifying or rejecting the proposed plan of correction, the commissioner shall state the reasons for the modification or rejection.

4.10.g. If the commissioner rejects the plan of correction, the licensee has up to fifteen (15) working days from the receipt of the commissioner’s determination to submit a revised plan.

4.10.h. The commissioner may conduct a follow-up on-site inspection to verify the correction of any violations identified during an inspection or any other investigation.

4.11. Classification of Standards.

4.11.a. In accordance with W. Va. Code §16-5D-5c), the classification for each standard indicates the most serious classification that may be assigned to that standard.

4.12. New Construction, Additions, Renovations and Alterations.

4.12.a. 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 commissioner to the new or renovated portion.

4.12.b. 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:

4.12.b.1. 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 commissioner 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.

4.12.b.2. 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 commissioner and state fire marshal for approval.

4.12.b.3. 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 commissioner that the plan approval for construction is still valid and in compliance with this rule.

4.12.c. The commissioner shall inspect sites for all proposed residences and sites of additions or renovations to existing residences, prior to the applicant initiating construction. Sites shall:

4.12.c.1. Have adequate drainage to divert surface water and be located in an area above the one hundred (100) year flood plain;

4.12.c.2. 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:

4.12.c.2.A. A public water system that complies with the Division of Health rule, “Public Water Systems,” 64CSR3; or

4.12.c.2.B. A water well that complies with the Division of Health rules, “Water Well Regulations,” 64CSR19 and “Water Well Design Standards,” 64CSR46; and

4.12.c.3. Have precautions to assure the residents’ safety, if located near railroads, freight yards, traffic arteries or airports.

4.12.d. 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 conducted, the applicant shall provide the commissioner with copies of the soil test reports.

4.12.e. The commissioner 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 commissioner.

4.12.f. The applicant is responsible for paying all fees specified in the Division of Health rule, “Fees for Services,” 64CSR51 for site inspections of new construction or major renovations, architect reviews of drawings and specifications, and inspections of new projects before they begin.

4.12.g. 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 commissioner for approval.

4.12.h. 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 commissioner’s approval. The applicant shall request approval in advance from the commissioner 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.

4.12.i. The applicant shall submit the plan of operation to the commissioner for approval, and the commissioner shall determine the licensed bed capacity. For an increase in the licensed bed capacity, the licensee shall obtain prior written approval of the commissioner.

4.12.j. The residence shall comply with the state fire commission, the international building code, 2003 Ed.

4.12.k. The residence shall comply with the Fire Commission rule, “Fire Code,” 87CSR1.

4.12.l. The residence shall comply with the Americans with Disabilities Act (ADA) and the American National Standards Institute (ANSI) codes.

4.12.m. The residence shall comply with local building or zoning codes if they require standards higher than those required by this rule.

4.12.n. The applicant shall have evidence of compliance signed by local fire, building and zoning officials available onsite for review.

4.12.o. The residence shall have an all weather hard surface

road that connects directly to a highway.

4.12.p. The residence shall have parking areas with:

4.12.p.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

4.12.p.2. Adequate spaces for all staff on duty and a minimum of one (1) parking space for each five (5) beds.

4.12.q. 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 thirty-six (36) inches wide.

4.12.r. 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.

4.12.s. 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.

4.12.t. 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.

4.12.u. Bedrooms shall :

4.12.u.1. Have at least one hundred (100) square feet of floor area per resident in single occupancy rooms, and ninety (90) square feet of floor area per resident in double occupancy rooms;

4.12.u.2. Have an outside exposure through a vertical transparent window;

4.12.u.3. Not extend below ground level unless granted written approval by the commissioner; and

4.12.u.4. Not be occupied by more than two (2) persons.

4.12.v. The residence’s toilet and bathing facilities shall provide the following:

4.12.v.1. A minimum of two (2) 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 (6) residents;

4.12.v.2. 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 ten (10) residents;

4.12.v.3. Grab-bars at toilets, tubs, and showers that are securely mounted to the finished wall with a steel plate or a two (2) inch by six (6) inch wood plate backing behind the wall. Grab bar brackets shall be spaced to support two hundred and fifty (250) pounds of a concentrated load at any point on the grab bar; and

4.12.v.4. Bathroom doors with locking type hardware that swing outward and can be opened from outside in the event of an emergency.

4.12.w. The residence shall have a dining area of at least fifteen (15) square feet per resident and an area of at least fifteen (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 thirty (30) square feet per resident.

4.12.x. 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.

4.12.y. 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.

4.12.z. The residence shall have sewage disposal in accordance with Division of Health rules, “Sewage System Rules,” 64CSR9, and “Sewage Treatment and Collection System Design Standards,” 64CSR47.