BECKLEY – The West Virginia Department of Health and Human Resources has filed a petition for injunctive relief and temporary restraining order in an attempt to get a pain clinic in Raleigh County to be shut down.
Dr. Michael Kostenko is doing business as Coal Country Clinic Inc.
The WVDHHR/Office of Health Facility Licensure and Certification filed the petition in Raleigh Circuit Court this week after the owner, Kostenko, has twice defied the state’s orders to close.
In 2012, the West Virginia Legislature passed the Chronic Pain Clinic Licensing Act in order to establish licensing requirements for facilities that treat patients for chronic pain management.
On Aug. 4, 2014, OHFLAC inquired to Kostenko regarding whether Coal Country Clinic met the statutory definition of a chronic pain management clinic and on Sept. 2, 2014, Kostenko responded that the clinic was exempt for licensure. He argued that “chronic pain does not include pain associated with a terminal condition or with a progressive disease that, in the normal course of progression, may reasonably be expected to result in a terminal condition” and claimed that 90 percent of his patients met that definition.
On Oct. 17, 2014, OHFLAC informed Kostenko that the clinic would have to provide additional information to determine if it was exempt from the rule and on Oct. 31, 2014, Kostenko responded with the same general argument as in his first letter.
In response to a complaint that the clinic was operating without a license, a survey at the clinic site was conducted on March 30 and the survey found that the clinic was operating as a pain clinic and that record keeping was incomplete with little documentation of patient diagnosis and/or assessments, according to the petition.
The plaintiff claims interviews with staff, along with Board of Pharmacy reports, confirmed that 100 percent of patients were treated for chronic pain and received prescriptions for narcotic pain medications. By letter dated March 31, Kostenko requested that Coal Country Clinic be exempted from licensure and no supporting documentation was provided with the request.
On April 9, OHFLAC again informed Kostenko that the clinic met the criteria to require licensure as a chronic pain management clinic and was again notified to submit an application for licensure and was informed his clinic did not meet any of the exemptions for licensure.
Kostenko requested a hearing regarding the decision on April 22 and also submitted an application to be licensed as a pain clinic.
On May 8, Kostenko was informed that his application had been denied and that he was required to cease operations and given 45 days to close, according to the petition. No request for hearing was received and on June 22, Kostenko requested a one-week extension to the closure order “due to ethical issue of potential patient abandonment.”
The plaintiff allowed the clinic to remain open until July 6, and discovered on Aug. 13, that the clinic was still operating as a pain clinic.
WVDHHR is seeking the court immediately issue a temporary restraining order prohibiting Kostenko from operating the clinic in violation of the licensure rules for chronic pain management clinics; that the court immediately enjoin Kostenko from operating the clinic in violation of the licensure rules; that the clinic remain closed unto it is brought into compliance; and that the court grant any other relief deemed equitable. It is being represented by Assistant Attorney General James “Jake” Wegman.
The case is assigned to Circuit Judge Robert A. Burnside Jr.
Raleigh Circuit Court case number: 15-C-929
