Nursing Home Resident Complaint — West Virginia (Long-Term Care Ombudsman / OHFLAC)

WEST VIRGINIA NURSING HOME RESIDENT COMPLAINT

TABLE OF CONTENTS

1. Filing Pathways and Contact Directory
2. Resident Information
3. Facility Information
4. Complainant Information and Authority to Act
5. Statement of Concerns
6. Resident Rights Allegedly Violated
7. Evidence and Documentation
8. Internal Facility Grievance Already Filed
9. Relief Requested
10. Confidentiality, Retaliation, and Resident Choice
11. Cross-Reports to Other Agencies
12. Complainant Certification and Signature
13. Statutory and Regulatory Framework
14. West Virginia Practice Notes
15. Sources and References

1. FILING PATHWAYS AND CONTACT DIRECTORY

Direct this complaint to (check all that apply):

☐ West Virginia Long-Term Care Ombudsman Program (Bureau of Senior Services)

• Address: 1900 Kanawha Boulevard East, Charleston, WV 25305
• Telephone: 1-800-834-0598
• Website: http://www.wvseniorservices.gov/StayingSafe/LongTermCareOmbudsmanProgram/

☐ OHFLAC — Office of Health Facility Licensure & Certification

• Address: 408 Leon Sullivan Way, Charleston, WV 25301
• Telephone: (304) 558-0050
• Toll-free: 1-800-442-2888
• Online complaint: https://ohflac.wvdhhr.org/complaint.html

☐ Adult Protective Services Centralized Intake (where abuse, neglect, or financial exploitation is alleged)

• Telephone: 1-800-352-6513 (24/7/365)

☐ Internal facility grievance to administrator (parallel to above)

• Administrator: [________________________________]
• Address: [________________________________]
• Email / fax: [________________________________]

☐ Centers for Medicare & Medicaid Services (CMS) — for federally certified facilities, complaints may also be made to the State Survey Agency (OHFLAC) acting on CMS behalf, and through https://www.medicare.gov/care-compare/.

Date this complaint submitted: [__/__/____]

2. RESIDENT INFORMATION

Resident's wishes regarding this complaint:

☐ Resident has consented to filing of this complaint and to disclosure of identity to investigators

☐ Resident has consented to filing but requests that name be withheld from facility (Ombudsman will honor; OHFLAC will protect to extent permitted by law)

☐ Resident lacks capacity; complaint filed by surrogate / guardian / family

☐ Complainant is anonymous third party reporting concerns about an identified resident

3. FACILITY INFORMATION

4. COMPLAINANT INFORMATION AND AUTHORITY TO ACT

5. STATEMENT OF CONCERNS

Date(s) of incident or onset of pattern: [__/__/____] through [__/__/____]

Location within facility: [________________________________]

Witnesses present: [________________________________]

Detailed factual narrative — describe what happened, who was involved, and the impact on the resident (use additional pages as needed):

[____________________________________________________________]

[____________________________________________________________]

[____________________________________________________________]

[____________________________________________________________]

[____________________________________________________________]

[____________________________________________________________]

Pattern indicators:

• ☐ Single incident
• ☐ Recurring; first observed [__/__/____]; most recent [__/__/____]; frequency [____________]
• ☐ Systemic / facility-wide concern observed across multiple residents

6. RESIDENT RIGHTS ALLEGEDLY VIOLATED

(Check all that apply; cite specific authority)

A. Care and safety (federal — 42 C.F.R. § 483.12, § 483.24, § 483.25; state — 64 CSR 13-4.16, W. Va. Code § 16-5C-15):

☐ Physical abuse ☐ Verbal / mental abuse ☐ Sexual abuse ☐ Misappropriation of property ☐ Neglect (failure to provide care to attain or maintain highest practicable well-being) ☐ Avoidable pressure injury ☐ Falls without adequate intervention ☐ Medication errors ☐ Inappropriate use of physical or chemical restraint (PRN antipsychotic without indication, side rails, posey vests, lap trays) ☐ Unexplained injury ☐ Resident-on-resident altercation not prevented ☐ Inadequate infection control ☐ Inadequate response to call light / unanswered call light ☐ Dehydration / weight loss / malnutrition ☐ Failure to provide ADL assistance (bathing, toileting, transfer, eating) ☐ Failure to honor advance directive / POLST / MOST

B. Dignity, privacy, and autonomy (42 C.F.R. § 483.10; 64 CSR 13-4 / 13-5; W. Va. Code § 16-5C-15):

☐ Verbal disrespect ☐ Loss of dignity in care ☐ Lack of privacy in personal care or visits ☐ Mail or telephone interference ☐ Restriction of visitors ☐ Restriction of electronic communication / video / internet ☐ Roommate dispute unaddressed ☐ Failure to accommodate cultural / religious needs ☐ Confiscation of personal property

C. Information, choice, and self-determination (42 C.F.R. § 483.10):

☐ Failure to inform resident of rights ☐ Failure to provide access to medical record within 24 hours of request (64 CSR 13-4) ☐ Refusal of choice of physician or pharmacy ☐ Failure to permit participation in care planning ☐ Refusal of right to refuse treatment ☐ Failure to honor advance directive ☐ Inadequate care-plan meetings / no notice to resident-representative

D. Grievances and retaliation (42 C.F.R. § 483.10(j); 64 CSR 13-4):

☐ No accessible grievance process ☐ Failure to respond to grievance in writing ☐ Retaliation, threat, or punishment for filing a grievance, contacting Ombudsman, or filing a complaint with OHFLAC

E. Transfer / discharge rights (42 C.F.R. § 483.15):

☐ Improper or involuntary transfer or discharge ☐ Discharge without 30-day written notice ☐ Discharge for non-medically appropriate reason ☐ Failure to assist with safe-discharge planning ☐ Discharge to unsafe setting ☐ Failure to provide bed-hold / readmission rights

F. Financial (42 C.F.R. § 483.10(f)(10); 64 CSR 13):

☐ Mismanagement of resident trust fund ☐ Failure to provide quarterly accounting ☐ Charging for services covered by Medicare or Medicaid ☐ Requirement of waiver of Medicaid / Medicare benefits ☐ Required third-party guarantee of payment as a condition of admission ☐ Demand for payment beyond contracted amounts

G. State-specific patient bill of rights (W. Va. Code § 16-5C-15):

☐ Right to be treated with consideration, respect, and full recognition of dignity and individuality ☐ Right to manage personal financial affairs ☐ Right to associate and communicate privately with persons of resident's choice ☐ Right to participate in social, religious, and community-group activities ☐ Right to retain and use personal clothing and possessions ☐ Right to be free from mental and physical abuse ☐ Right to privacy in treatment and care of personal needs ☐ Right to confidentiality of records ☐ Right to be informed of medical condition and to participate in treatment decisions ☐ Other: [________________________________]

7. EVIDENCE AND DOCUMENTATION

(Check items attached or available; do not delay filing for documentation)

☐ Photographs / video (with date stamps) of injuries, conditions, environment

☐ Medical records (admission, MDS, MAR, progress notes, incident reports)

☐ Care plan / assessment

☐ Facility's response to internal grievance

☐ Discharge / transfer notice

☐ Resident trust-fund statements

☐ Itemized bills / Medicare/Medicaid EOBs

☐ Witness statements (names and contact details listed below)

☐ Text messages, emails, voicemails

☐ Names of staff present (RNs, CNAs, LPNs, administrator)

8. INTERNAL FACILITY GRIEVANCE ALREADY FILED

(42 C.F.R. § 483.10(j) requires the facility to maintain a written grievance process)

☐ Yes — Date filed: [__/__/____]; Grievance Officer: [________________________________]

☐ No — explain: [________________________________]

Facility's response (date / substance): [________________________________]

☐ Resolution acceptable to resident

☐ No response within facility's stated timeframe

☐ Resolution unsatisfactory; complaint now escalated

9. RELIEF REQUESTED

The complainant requests (check all that apply):

☐ Investigation by Ombudsman / OHFLAC

☐ Unannounced on-site survey by OHFLAC (42 C.F.R. § 488.332)

☐ Plan of correction with verification

☐ Specific corrective action: [________________________________]

☐ Reversal of involuntary discharge / transfer and immediate readmission

☐ Restoration of bed-hold rights

☐ Refund / accounting of resident funds totaling $[____]

☐ Cessation of retaliation and protection from staff named in this complaint

☐ Referral for criminal investigation (abuse, neglect, financial exploitation)

☐ Referral for civil enforcement under W. Va. Code § 16-5C-16

☐ Federal enforcement — civil money penalties, denial of payment for new admissions, directed plan of correction, or termination from Medicare/Medicaid (42 U.S.C. § 1395i-3(h); 42 C.F.R. Part 488, Subpart F)

☐ Other: [________________________________]

10. CONFIDENTIALITY, RETALIATION, AND RESIDENT CHOICE

Ombudsman confidentiality. Under the Older Americans Act (42 U.S.C. § 3058g(d)) and W. Va. C.S.R. § 76-1, the Ombudsman Program may not disclose the identity of a complainant or resident without the express consent of the resident or the resident's legal representative, except as required by law.

OHFLAC confidentiality. OHFLAC investigates complaints and protects complainant identity to the extent permitted by W. Va. Code § 16-5C and applicable rules; some disclosures may be required for survey enforcement and federal CMS reporting.

Anti-retaliation. Federal regulations at 42 C.F.R. § 483.10(j)(4) and § 483.12(c) prohibit retaliation against any resident, family member, or staff member for raising concerns or filing complaints. Retaliation is itself a separate basis for OHFLAC enforcement and for civil action under W. Va. Code § 16-5C-16.

Resident choice / direction of complaint. When the resident has decision-making capacity, the complaint must be directed and modified consistent with the resident's expressed wishes. Where capacity is impaired or absent, the legal representative directs the complaint, with deference to the resident's known preferences.

11. CROSS-REPORTS TO OTHER AGENCIES

Depending on the facts, cross-reports may be required or appropriate:

Mandatory reporting overlay. If the complainant is a "mandatory reporter" under W. Va. Code § 9-6-9 (medical, dental, mental-health, social-service, law-enforcement, clergy, residential-facility employee, etc.), the verbal call to APS Centralized Intake at 1-800-352-6513 is required within 48 hours and is independent of, and not satisfied by, this written complaint.

12. COMPLAINANT CERTIFICATION AND SIGNATURE

I certify under penalty of perjury under the laws of West Virginia that the foregoing is true and correct to the best of my knowledge and belief, and that I am submitting this complaint in good faith for the protection of the resident named above. I understand that:

• The Long-Term Care Ombudsman Program will protect my identity and the resident's identity unless authorized to disclose.
• OHFLAC will protect my identity to the extent permitted by law.
• The agencies listed in Section 11 may share information with one another as authorized by federal and state law.
• Knowingly providing false information may itself violate W. Va. Code § 61-5-27 (false swearing) and other laws.
• Good-faith reports of abuse, neglect, or financial exploitation are immune from civil and criminal liability under W. Va. Code § 9-6-11.
• Retaliation against me or the resident is prohibited by federal and state law and is a separate ground for enforcement.

Complainant signature: [________________________________]

Printed name: [________________________________]

Date: [__/__/____]

Resident signature (if capacitated and consenting): [________________________________]

Date: [__/__/____]

Notary acknowledgment (optional):

State of West Virginia, County of [________________________________]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public — Commission expires: [_______________]

13. STATUTORY AND REGULATORY FRAMEWORK

Federal Nursing Home Reform Act (OBRA '87). Codified at 42 U.S.C. § 1395i-3 (Medicare) and § 1396r (Medicaid), with implementing regulations at 42 C.F.R. Part 483, Subpart B. Establishes resident rights, quality of care, quality of life, freedom from abuse and restraints, transfer/discharge protections, and CMS enforcement remedies. Every Medicare- or Medicaid-certified WV nursing facility is bound by these provisions.

WV Nursing Home Licensure Act (W. Va. Code Chapter 16, Article 5C). Establishes state licensure framework, the resident bill of rights at § 16-5C-15, civil cause of action at § 16-5C-16 (damages, injunctive relief, attorney fees and costs), and OHFLAC's regulatory authority under W. Va. Code § 16-5C-5 et seq.

WV Nursing Home Licensure Rule (64 CSR 13). Implementing administrative rule promulgated by the Bureau for Public Health / Department of Health, addressing residents' rights (§ 64-13-4), quality of life (§ 64-13-5), staffing, infection control, environmental safety, and grievance procedures.

WV Long-Term Care Ombudsman Program Act (W. Va. Code § 16-5L-1 et seq.; W. Va. C.S.R. § 76-1). Establishes the State LTC Ombudsman within the Bureau of Senior Services (DHHR). Ombudsmen have authority to access residents and records, advocate for resident-directed resolution, and report systemic issues. Federal authority: Older Americans Act, 42 U.S.C. § 3058g.

OHFLAC enforcement authority. OHFLAC is the State Survey Agency under contract with CMS for purposes of 42 U.S.C. § 1395aa. OHFLAC conducts annual recertification surveys and complaint investigations and may impose state remedies including license sanctions, civil money penalties, and license revocation.

Adult Protective Services overlay. W. Va. Code § 9-6-1 et seq. covers residents in long-term care facilities as "facility residents." Mandatory reporting under § 9-6-9 applies to facility employees.

Civil cause of action (W. Va. Code § 16-5C-16). A resident or representative may bring a civil action to enforce rights guaranteed by § 16-5C-15. Available remedies include (a) compensatory damages, (b) injunctive relief, (c) reasonable attorney fees and costs, and in appropriate cases (d) punitive damages where conduct is willful, wanton, or grossly negligent. Verify current statutory text for any caps, pre-suit notice requirements, or limitation periods (under W. Va. Code § 55-7-13a-d generally).

14. WEST VIRGINIA PRACTICE NOTES

• Choose the right pathway, but do not pick only one. Ombudsman is the right channel for resident-directed advocacy and informal resolution. OHFLAC is the right channel for formal regulatory investigation, plans of correction, and license sanctions. APS is the right channel for individual abuse/neglect/financial exploitation requiring protective action. CMS / federal enforcement applies to certified facilities. These pathways often run in parallel.

• Resident-directed advocacy. The Ombudsman Program is a resident-directed program. Where the resident has capacity, the Ombudsman acts as the resident directs, even if family members disagree.

• Mandatory reporting overlap. Facility employees who report suspected abuse or neglect to APS satisfy their mandatory-reporter duty under § 9-6-9, but federal regulations (42 C.F.R. § 483.12) require facilities to also report alleged violations to the State Survey Agency (OHFLAC) within statutory timeframes (immediately if serious bodily injury; within 24 hours otherwise). Failure to report internally and externally is itself a deficiency.

• Discharge and transfer protections. Under 42 C.F.R. § 483.15, a facility may transfer or discharge a resident only on enumerated grounds (resident welfare, improvement no longer requiring services, endangerment of safety/health of others, non-payment, or facility closure). Written notice of 30 days is generally required, including notice of right to appeal to the State Medicaid Fair Hearing process (for Medicaid residents) or via OHFLAC (otherwise).

• Bed-hold and readmission. State Medicaid plan rules (BMS) require bed-hold for hospitalization of a Medicaid resident, with right to readmission upon return. Loss of bed-hold is a frequent complaint area.

• Restraints. Both physical and chemical restraints are tightly limited. PRN antipsychotic orders are restricted under 42 C.F.R. § 483.45(e). Improper restraint use is a high-priority OHFLAC enforcement area.

• Civil litigation. W. Va. Code § 16-5C-16 supplies a private right of action for residents and their representatives. Combined with common-law claims (negligence, medical malpractice, negligent hiring/retention/supervision, breach of contract), and the Medical Professional Liability Act framework (W. Va. Code § 55-7B-1 et seq.) where applicable, plaintiff's counsel must analyze applicable caps, pre-suit notice and screening certificate requirements, and the two-year limitations period under § 55-2-12.

• DHHR reorganization. Effective 1/1/2024, DHHR was split into DoHS, DH, and DHF. OHFLAC and Bureau for Public Health functions sit within the new Department of Health (DH) structure; the Bureau for Social Services (APS) sits within DoHS; the Bureau of Senior Services (Ombudsman) remains a separate constitutional entity. Older statutes and forms reference "DHHR."

• Timely filing. No formal limitations period applies to filing an Ombudsman or OHFLAC complaint, but earlier reporting preserves evidence (CCTV, MAR, witness recollections) and allows surveys to find facts on-site.

15. SOURCES AND REFERENCES

• WV Long-Term Care Ombudsman Program — http://www.wvseniorservices.gov/StayingSafe/LongTermCareOmbudsmanProgram/
• Long-Term Care Ombudsman toll-free — 1-800-834-0598
• OHFLAC (Office of Health Facility Licensure & Certification) — https://ohflac.wvdhhr.org/
• OHFLAC complaint portal — https://ohflac.wvdhhr.org/complaint.html
• OHFLAC main: (304) 558-0050 / toll-free 1-800-442-2888
• WV APS Centralized Intake — 1-800-352-6513 (24/7)
• W. Va. Code Chapter 16, Article 5C (Nursing Home Licensure) — https://code.wvlegislature.gov/16-5C/
• W. Va. Code § 16-5C-15 (Patients' rights) — https://code.wvlegislature.gov/16-5C-15/
• W. Va. Code § 16-5L (Long-Term Care Ombudsman Program) — https://code.wvlegislature.gov/16-5L/
• W. Va. C.S.R. § 64-13 (Nursing Home Licensure Rule) — https://apps.sos.wv.gov/adlaw/csr/rule.aspx?rule=64-13
• W. Va. C.S.R. § 64-13-4 (Residents' Rights) — https://www.law.cornell.edu/regulations/west-virginia/W-Va-C-S-R-SS-64-13-4
• 42 C.F.R. Part 483 (Federal Nursing Home Reform Act regulations) — https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483
• 42 U.S.C. § 1396r (Medicaid nursing facility requirements)
• 42 U.S.C. § 3058g (Older Americans Act — Long-Term Care Ombudsman)
• CMS Care Compare — https://www.medicare.gov/care-compare/
• Legal Aid of WV — Long-Term Care Advocacy — https://legalaidwv.org/our-programs/long-term-care/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. Resident-rights provisions, complaint pathways, and contact details change. Verify all citations against current W. Va. Code, the Code of State Rules, and 42 C.F.R. Part 483 before filing, and consult a West Virginia-licensed attorney for advice in any individual case, particularly before pursuing civil litigation, contesting a transfer or discharge, or where retaliation is feared.