W. Va. Code R. § 64-59-20 - Patient Advocacy and Grievance Procedure

20.1. Patient Advocacy. There shall be persons designated as patient or resident advocates who are independent of the facility management in every mental health facility.

20.2. Right to File A Grievance. A grievance may be initiated by a patient or patient advocate, a member of a patient's family, a facility employee or other individual on behalf of any patient of a mental health facility: Provided, That the patient advocate must comply with 42 C.F.R. § 482.13(a)(2) for filing a grievance and the prompt resolution of grievances. A grievance may involve any aspect of a patient's care, treatment, housing, services, accommodations, etc. and is not restricted to alleged violations of a patient's rights or abuse of the patient.

20.2.1. Filing of A Grievance. A grievance may be registered by a patient or someone on behalf of the patient, orally or in writing, to any facility staff member or to the patient advocate.

20.2.2. Oral Grievance. When a grievance is orally registered by a patient to a staff member or a patient advocate, the staff member or the patient advocate shall promptly assist the patient in reducing the grievance to writing on the standard grievance form.

20.2.3. A supply of grievance forms shall always be maintained in the administrative offices and on all units or offices of the facility for continuous access by patients. Each facility shall make patients aware of their rights and ensure access to this grievance procedure.

20.2.4. Filing the Grievance. All grievances shall be reduced to writing as specified in subdivision 20.2.2 of this rule and promptly delivered by the staff to the facility administrator or the administrator's designee and the patient advocate.

20.2.5. Response of The Administrator. The administrator or his or her designee, after reviewing the grievance, shall respond to the complaining party by the next work day following receipt of the grievance, unless the grievance involves abuse or neglect, in which case the grievance shall be referred to a patient advocate for investigation within one hour of receipt by the administrator or his or her designee if the advocate was not involved in the preparation of the abuse or neglect grievance. In that case, the grievance shall be answered the next work day following receipt of the report of the patient advocate.

20.2.6. The response by the administrator or his or her designee shall be in writing on the grievance form and a copy of the response shall be delivered to the complainant and the patient advocate. The patient advocate is responsible for keeping an accurate record of all grievances, of actions taken, and their resolution.

20.2.7. The facility shall seek to resolve grievances as expeditiously as possible either by providing the relief requested or utilizing internal administrative mechanisms, treatment teams, etc. Living units operated by the facility shall have mechanisms in place to facilitate communication and resolution of problems such as environmental problems and interpersonal conflicts experienced by patients.

20.2.8. Action on Grievances. The administrator shall immediately initiate appropriate action to correct meritorious grievances.

20.2.9. Abuse/Neglect Investigation. All grievances of abuse or neglect, or both, shall be investigated by the facility patient advocate or an outside advocate as appropriate. Upon receipt of an abuse/neglect grievance, the advocate shall immediately interview the patient and review the situation. Within the next eight regular working hours, the advocate shall make a written report to the facility administrator. As part of the investigative process the advocate shall have access to all staff members, pertinent records and documents and shall interview witnesses and take statements as appropriate. The advocate shall not have access to employee personnel records; all investigations shall be based on evidence related to the grievance under investigation only.

20.2.10. Reporting Abuse or Neglect, or both. W. Va. Code § 9-6-9, the West Virginia Adult Protective Services Act, requires that any and all behavioral health professionals shall immediately report all actual or suspected cases of abuse or neglect of incapacitated adults to the Department of Health and Human Resources local adult protective services office. If the report is made by telephone, the adult protective services requires a written report from the individual reporting the incident within 48 hours.

20.2.11. When a facility employee or the patient advocate becomes aware or is notified of a grievance of abuse or neglect, he or she shall immediately notify the advocate, the local adult protective services agency directly or by phone, his or her supervisor, and the administrator, and document the incident. Initiation of this procedure in noway abrogates the duty of the facility to respond to the grievance filed in the manner set forth in this rule.

20.2.12. Initiating an Appeal of a Grievance Determination. In the event that the complaining party is not satisfied with the determination by the administrator, the complaining party may appeal the determination by submitting a copy of the original grievance form and determination to the Office of the Court Monitor in accordance with an Agreed Amended Order entered on October 15, 2012, in the action E.H., et al., v. Matin, et al.. Civil Action No. 81-MISC-585 (Circuit Court of Kanawha County, West Virginia) or subsequent applicable order that may be entered by the court in such action.

20.2.13. No Waiver. Nothing in this rule is intended to serve as a precondition to or supplant any other remedial initiatives that a patient may wish to pursue relative to a claim. Nothing in this rule nor any action by the administrator interferes with or supplants a state employee's rights pursuant to W. Va. Code § 6C-2-1 et seq., or application of the grievance procedure for state employees, nor should it be considered to change or waive the employee grievance timelines for filing a grievance.

20.2.14. Confidentiality/Protection. Procedures and investigations conducted under this rule shall be conducted with due regard for the confidentiality, rights, and dignity of all parties. The facility may not discharge or in any manner discriminate against any patient, employee, or other party because of involvement in the grievance or appeal process.

20.2.15. Responsibilities of Parties. The responsibilities of the parties are set forth below:

20.2.15.a. Employees shall be aware of patient rights, know the facility's procedures for reporting and filing grievances, report infractions of patient rights, assist patients to access the facility advocate, to resolve grievances and assist in investigations of infractions of patient rights.

20.2.15.b. Patient advocates shall assist patients in registering and filing grievances, acknowledge grievances, conduct investigations of grievances, notify the administrator of results of grievance investigations, assure that abuse/neglect grievances have been reported to Adult Protective Services, educate staff regarding patient rights and maintain accurate documentation of all grievances and investigations.

20.2.15.c. The administrator and his or her designates shall file responses within established time frames, assure patient protection by appropriate staff disciplinary actions, to deal promptly and effectively with acts of discrimination or reprisal against staff or patients regarding patient rights and supporting staff development efforts toward educating all staff regarding patient rights.

20.2.15.d. Staff Development Officers shall assure that all staff are made aware of patient rights, facility procedures for reporting and resolving grievances, grievance procedures, personnel policies regarding reporting of violations of patient rights, staff grievance procedures and facility policies to protect staff from harassment and retaliation and threats for reporting rights violations.

Notes

W. Va. Code R. § 64-59-20