A. Notwithstanding any other provision of law, the Commissioner may impose sanctions in accordance with this section on any nursing home that is licensed pursuant to Chapter 5 (§ 32.1-123 et seq.) in response to findings made during a state licensure inspection conducted within the previous 24 months and for which such findings have been communicated to the nursing home within 14 business days of the survey end date for:
1. Violating any order of or refusing, failing, or neglecting to comply with any order of the Board or Commissioner, or violating any provision of Chapter 5 (§ 32.1-123 et seq.) or of any applicable regulation promulgated pursuant to Chapter 5 (§ 32.1-123 et seq.); or
2. Permitting, aiding, or abetting the commission of any illegal act during the provision of health care services delivered by such nursing home.
B. No sanctions under this section shall be imposed for violations deemed more severe than a level 2 deficiency under the Centers for Medicare and Medicaid Services deficiency severity definitions under federal law.
C. The sanctions that the Commissioner may impose pursuant to subsection A shall include the following:
1. Placing on probation any license issued pursuant to Chapter 5 (§ 32.1-123 et seq.); and
2. Imposing a civil penalty not to exceed $500 per violation per day, capped at $10,000 for a series of related incidents of noncompliance. Any civil penalties collected by the Commissioner pursuant to this subdivision shall be paid to the Nursing Scholarship and Loan Repayment Fund established pursuant to § 54.1-3011.2 to be used for the nursing scholarship and loan repayment program for nurses who agree to perform a period of service in a Commonwealth long-term care facility established pursuant to subsection B of § 32.1-122.6:01.
D. A nursing home sanctioned by the Commissioner pursuant to subsection C shall retain responsibility for the health, safety, and welfare of any person under such nursing home’s care, including the timely transfer or relocation of any persons under such nursing home’s care as may be deemed necessary by the Commissioner.
1. Prior to imposing sanctions pursuant to subsection C, the Commissioner shall first require the submission of and compliance with a plan of correction. Such plan of correction shall include mandated training for the nursing home’s employees, with all costs borne by the facility, when the Commissioner concludes that the lack of training has led directly to noncompliance.
2. Upon expiration of the initial plan of correction, the Commissioner may extend the time period for the plan of correction or may impose sanctions pursuant to subsection C.
E. The Commissioner shall impose a sanction pursuant to subsection C only after the person subject to such disciplinary action is provided reasonable notice and an opportunity to be heard within no fewer than 30 days from the day of such notice by the Commissioner’s presiding officer in accordance with § 2.2-4019. Such sanction may be in addition to any penalty imposed by law for the violation for which such sanction is imposed.
1. All requests for an opportunity to be heard following a notice of the imposition of such sanction shall be received in writing within 15 days of the date of receipt of such notice.
2. All administrative proceedings under this section shall be separate from the regulatory office of the Department that conducted the inspection, investigation, examination, or review.
3. The adjudication officer shall provide a recommendation to the Commissioner, including findings of fact, conclusions, and appropriate disciplinary action.
4. The Commissioner may affirm, modify, or reverse such recommendation and shall issue a final case decision.
5. Any person aggrieved by the final case decision of the Commissioner to impose disciplinary action is entitled to judicial review in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).
F. If a nursing home has been sanctioned by the Centers for Medicare and Medicaid Services for conduct that also subjects the nursing home to sanctions pursuant to subsection A, the Commissioner shall not issue a sanction under this section. If the Centers for Medicare and Medicaid Services fail to issue a sanction to a nursing home in the Commonwealth for conduct described in subsection A within 60 days, the Commissioner may issue a sanction under this section if he determines that issuing such sanction is necessary to protect the public health and welfare or the health and safety of the nursing home’s clients. In the event the Centers for Medicare and Medicaid Services issue a sanction on a violation for which the Commissioner has issued a sanction pursuant to this section, the sanction issued by the Commissioner shall be nullified with any civil penalty imposed refunded to the nursing home within 60 days.
G. If a license of any nursing home issued pursuant to Chapter 5 (§ 32.1-123 et seq.) is revoked, a new license may be issued by the Commissioner after:
1. Satisfactory evidence is submitted to him that the conditions upon which revocation was based have been corrected; and
2. Proper inspection has been made and compliance with all provisions of Chapter 5 (§ 32.1-123 et seq.) and applicable state and federal laws and regulations hereunder has been obtained.
H. The Board shall promulgate regulations to implement the provisions of this section that include:
1. Criteria for when the imposition of sanctions or initiation of court proceedings as specified in § 32.1-27, 32.1-27.1, or a combination thereof are appropriate in order to ensure prompt correction of violations involving noncompliance with requirements of any order of the Board or Commissioner or any provision of or regulation promulgated pursuant to Chapter 5 (§ 32.1-123 et seq.);
3. A schedule of civil penalties, which shall be uniform for each type of specific violation;
4. Procedures for the imposition of sanctions consistent with the Administrative Process Act (§ 2.2-4000 et seq.); and
5. Provisions for the prompt notification of the Department of Medical Assistance Services whenever any license is revoked or suspended for the purpose of terminating or suspending the applicable Medicaid provider agreement.