West Virginia Code 16-5D-3 – Powers, duties, and rights of secretary
In the administration of this article, the secretary has the following powers, duties, and rights:
Terms Used In West Virginia Code 16-5D-3
- Assisted living residence: means any living facility, residence, or place of accommodation, however named, available for four or more residents, in this state which is advertised, offered, maintained, or operated by the ownership or management, whether for a consideration or not, for the express or implied purpose of having personal assistance or supervision, or both, provided to any residents therein who are dependent upon the services of others by reason of physical or mental impairment and who may also require nursing care at a level that is not greater than limited and intermittent nursing care: Provided, That 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, may not be deemed to constitute an assisted living residence within the meaning of this article. See West Virginia Code 16-5D-2
- Bequest: Property gifted by will.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Devise: To gift property by will.
- Division: means the Office of Health Facility Licensure and Certification within the Office of the Inspector General of the state Department of Health and Human Resources. See West Virginia Code 16-5D-2
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Person: means an individual and every form of organization, whether incorporated or unincorporated, including any partnership, corporation, trust, association, or political subdivision of the state. See West Virginia Code 16-5D-2
- Secretary: means the secretary of the state Department of Health and Human Resources or his or her designee. See West Virginia Code 16-5D-2
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
- Subpoena: A command to a witness to appear and give testimony.
- Testimony: Evidence presented orally by witnesses during trials or before grand juries.
(a) To enforce rules and standards for assisted living residences which are adopted, promulgated, amended, or modified by the secretary;
(b) To exercise as sole authority all powers relating to the issuance, suspension, and revocation of licenses of assisted living residences;
(c) To enforce rules adopted, promulgated, amended, or modified by the secretary governing the qualification of applicants for assisted living residences, including, but not limited to, educational requirements, financial requirements, personal, and ethical requirements;
(d) To receive and disburse federal funds and to take whatever action not contrary to law as may be proper and necessary to comply with the requirements and conditions for the receipt of federal funds;
(e) To receive and disburse for authorized purposes any moneys appropriated for the division by the Legislature;
(f) To receive and disburse for purposes authorized by this article, any funds that may come to the division by gift, grant, donation, bequest, or devise, according to the terms thereof, as well as funds derived from the division’s operation or otherwise;
(g) To make contracts and to execute all instruments necessary or convenient in carrying out the secretary’s functions and duties; and all such contracts, agreements, and instruments will be executed by the secretary;
(h) To appoint officers, agents, employees, and other personnel and fix their compensation;
(i) To offer and sponsor educational and training programs for assisted living residences’ administrative, management, and operational personnel;
(j) To undertake survey, research and planning projects, and programs relating to administration and operation of assisted living residences and to the health, care, treatment, and service in general of residents of assisted living residences;
(k) To assess civil penalties for violations of assisted living residence standards in accordance with § 16-5D-10 of this code;
(l) To inspect any assisted living residence and any records maintained therein subject to the provisions of §16-5D-9 and § 16-5D-10 of this code;
(m) To establish and implement procedures, including informal conferences, investigations and hearings, subject to applicable provisions of § 29A-3-1 et seq. of this code, and to enforce compliance with the provisions of this article and with rules issued hereunder by the secretary;
(n) To subpoena witnesses and documents, administer oaths and affirmations, and to examine witnesses under oath for the conduct of any investigation or hearing. Upon failure of a person without lawful excuse to obey a subpoena to give testimony, and upon reasonable notice to all persons affected thereby, the secretary may apply to the circuit court of the county in which the hearing is to be held or to the Circuit Court of Kanawha County for an order compelling compliance;
(o) To make complaint or cause proceedings to be instituted against any person for the violation of the provisions of this article or of rules issued hereunder by the secretary. Such action may be taken by the secretary without the sanction of the prosecuting attorney of the county in which proceedings are instituted if the prosecuting attorney fails or refuses to discharge his or her duty. The Circuit Court of Kanawha County or the circuit court of the county in which the conduct has occurred shall have jurisdiction in all civil enforcement actions brought under this article and may order equitable relief without bond. In no such case may the secretary or any person acting under the secretary’s direction be required to give security for costs;
(p) To delegate authority to the secretary’s employees and agents to perform all functions of the secretary except the making of final decisions in adjudications; and
(q) To make available to the Governor, the Legislature and the public at all times online access through the Office of Health Facility Licensure and Certification website the following information. The online information will describe the assisted living residence licensing and investigatory activities of the division. The online information will include a list of all assisted living residences in the state and such of the following information as the secretary determines to apply: Whether the assisted living residences are proprietary or nonproprietary; the classification of each assisted living residence; the name of the administrator or administrators; the total number of beds; license type; license number; license expiration date; health investigations information and reports; life safety investigations information and reports; and whether or not those assisted living residences listed accept Medicare and Medicaid residents.