32.1-27.1 - Additional civil penalty or appointment of a receiver.
§ 32.1-27.1. Additional civil penalty or appointment of a receiver.
A. In addition to the remedies provided in § 32.1-27, the civil penalties setforth in this section may be imposed by the circuit court for the city orcounty in which the facility is located as follows:
1. A civil penalty for a Class I violation shall not exceed the lesser of $25per licensed or certified bed or $1,000 for each day the facility is inviolation, beginning on the date the facility was first notified of theviolation.
2. A civil penalty for a Class II violation shall not exceed the lesser of $5per licensed or certified bed or $250 per day for each day the facility is inviolation, beginning on the date the facility was first notified of theviolation.
In the event federal law or regulations require a civil penalty in excess ofthe amounts set forth above for Class I or Class II violations, then thelowest amounts required by such federal law or regulations shall become themaximum civil penalties under this section. The date of notification underthis section shall be deemed to be the date of receipt by the facility ofwritten notice of the alleged Class I or Class II violation, which noticeshall include specifics of the violation charged and which notice shall behand delivered or sent by overnight express mail or by registered orcertified mail, return receipt requested.
All civil penalties received pursuant to this subsection shall be paid into aspecial fund of the Department for the cost of implementation of thissection, to be applied to the protection of the health or property ofresidents or patients of facilities that the Commissioner or the UnitedStates Secretary of Health and Human Services finds in violation, includingpayment for the costs for relocation of patients, maintenance of temporarymanagement or receivership to operate a facility pending correction of aviolation, and for reimbursement to residents or patients of lost personalfunds.
B. In addition to the remedies provided in § 32.1-27 and the civil penaltiesset forth in subsection A of this section, the Commissioner may petition thecircuit court for the jurisdiction in which any nursing home or certifiednursing facility as defined in § 32.1-123 is located for the appointment of areceiver in accordance with the provisions of this subsection whenever suchnursing home or certified nursing facility shall (i) receive official noticefrom the Commissioner that its license has been or will be revoked orsuspended, or that its Medicare or Medicaid certification has been or will becancelled or revoked; or (ii) receive official notice from the United StatesDepartment of Health and Human Services or the Department of MedicalAssistance Services that its provider agreement has been or will be revoked,cancelled, terminated or not renewed; or (iii) advise the Department of itsintention to close or not to renew its license or Medicare or Medicaidprovider agreement less than ninety days in advance; or (iv) operate at anytime under conditions which present a major and continuing threat to thehealth, safety, security, rights or welfare of the patients, including thethreat of imminent abandonment by the owner or operator, or a pattern offailure to meet ongoing financial obligations such as the inability to payfor essential food, pharmaceuticals, personnel, or required insurance; and(v) the Department is unable to make adequate and timely arrangements forrelocating all patients who are receiving medical assistance under thischapter and Title XIX of the Social Security Act in order to ensure theircontinued safety and health care.
Upon the filing of a petition for appointment of a receiver, the court shallhold a hearing within ten days, at which time the Department and the owner oroperator of the facility may participate and present evidence. The court maygrant the petition if it finds any one of the conditions identified in (i)through (iv) above to exist in combination with the condition identified in(v) and the court further finds that such conditions will not be remedied andthat the patients will not be protected unless the petition is granted.
No receivership established under this subsection shall continue in effectfor more than 180 days without further order of the court, nor shall thereceivership continue in effect following the revocation of the nursinghome's license or the termination of the certified nursing facility'sMedicare or Medicaid provider agreement, except to enforce anypost-termination duties of the provider as required by the provisions of theMedicare or Medicaid provider agreement.
The appointed receiver shall be a person licensed as nursing homeadministrator in the Commonwealth pursuant to Title 54.1 or, if not solicensed, shall employ and supervise a person so licensed to administer theday-to-day business of the nursing home or certified nursing facility.
The receiver shall have (i) such powers and duties to manage the nursing homeor certified nursing facility as the court may grant and direct, includingbut not limited to the duty to accomplish the orderly relocation of allpatients and the right to refuse to admit new patients during thereceivership, (ii) the power to receive, conserve, protect and disbursefunds, including Medicare and Medicaid payments on behalf of the owner oroperator of the nursing home or certified nursing facility, (iii) the powerto execute and avoid executory contracts, (iv) the power to hire anddischarge employees, and (v) the power to do all other acts, including thefiling of such reports as the court may direct, subject to accounting to thecourt therefor and otherwise consistent with state and federal law, necessaryto protect the patients from the threat or threats set forth in the originalpetitions, as well as such other threats arising thereafter or out of thesame conditions.
The court may grant injunctive relief as it deems appropriate to theDepartment or to its receiver either in conjunction with or subsequent to thegranting of a petition for appointment of a receiver under this section.
The court may terminate the receivership on the motion of the Department, thereceiver, or the owner or operator, upon finding, after a hearing, thateither (i) the conditions described in the petition have been substantiallyeliminated or remedied, or (ii) all patients in the nursing home or certifiednursing facility have been relocated. Within thirty days after suchtermination, the receiver shall file a complete report of his activities withthe court, including an accounting for all property of which he has takenpossession and all funds collected.
All costs of administration of a receivership hereunder shall be paid by thereceiver out of reimbursement to the nursing home or certified nursingfacility from Medicare, Medicaid and other patient care collections. Thecourt, after terminating such receivership, shall enter appropriate orders toensure such payments upon its approval of the receiver's reports.
A receiver appointed under this section shall be an officer of the court,shall not be liable for conditions at the nursing home or certified nursingfacility which existed or originated prior to his appointment and shall notbe personally liable, except for his own gross negligence and intentionalacts which result in injuries to persons or damage to property at the nursinghome or certified nursing facility during his receivership.
The provisions of this subsection shall not be construed to relieve anyowner, operator or other party of any duty imposed by law or of any civil orcriminal liability incurred by reason of any act or omission of such owner,operator, or other party.
(1989, c. 618; 1996, cc. 788, 797.)