H. B. 3223

         (By Delegate Householder)

         [Introduced February 21, 2011; referred to the

         Committee on the Judiciary.]

A BILL to amend and reenact §9-6-1, §9-6-2, §9-6-9 and §9-6-11 of the Code of West Virginia, 1931, as amended, all relating to complaints made against employees of the Department of Health and Human Resources; permitting an employee to have a representative; prohibiting a supervisor from acting as that representative; requiring the employee to be provided with a written copy of the complaint; providing that an employee may respond in writing to an allegation; and defining terms.

Be it enacted by the Legislature of West Virginia:

    That §9-6-1, §9-6-2, §9-6-9 and §9-6-11 of the Code of West Virginia, 1931, as amended, be amended and reenacted ,all to read as follows:

ARTICLE 6. SOCIAL SERVICES FOR ADULTS.

§9-6-1. Definitions.

    The following words and terms, when used in this article, shall have the same meaning hereinafter ascribed to them unless the context clearly indicates a different meaning:

    (1) "Adult protective services agency" means any public or nonprofit private agency, corporation, board or organization furnishing protective services to adults;

    (2) "Abuse" means the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult or facility resident;

    (3) “Department” means the Department of Health and Human Resources;

    (3) (4) "Neglect" means: (A) The failure to provide the necessities of life to an incapacitated adult or facility resident with intent to coerce or physically harm the incapacitated adult or resident; and (B) the unlawful expenditure or willful dissipation of the funds or other assets owned or paid to or for the benefit of an incapacitated adult or resident;

    (4) (5) "Incapacitated adult" means any person who by reason of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life and reasonable health;

    (5) (6) "Emergency" or "emergency situation" means a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated adult;

    (6) (7) "Legal representative" means a person lawfully invested with the power and charged with the duty of taking care of another person or with managing the property and rights of another person, including, but not limited to, a guardian, conservator, medical power of attorney representative, trustee or other duly appointed person;

    (7) (8) "Nursing home" or "facility" means any institution, residence, intermediate care facility for the mentally retarded, care home or any other adult residential facility, or any part or unit thereof, that is subject to the provisions of articles five-c, five-d, five-e or five-h, chapter sixteen of this code;

    (8) (9) "Regional long-term care ombudsman" means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the bureau for senior services and meets the qualifications set forth in section seven, article five-l, chapter sixteen of this code;

    (9) (10) "Facility resident" means an individual living in a nursing home or other facility, as that term is defined in subdivision (7) (8) of this section;

    (11) “Representative” or “employee representative” means a designated advocate for the employee who may be from an employee organization, a fellow employee, an attorney or other person designated by the employee who is not a supervisor who evaluates the employee being subjected to any investigation or disciplinary process.

    (10) (12) "Responsible family member" means a member of a resident’s family who has undertaken primary responsibility for the care of the resident and who has established a working relationship with the nursing home or other facility in which the resident resides. For purposes of this article, a responsible family member may include someone other than the resident’s legal representative;

    (11) (13) "State long-term care ombudsman" means an individual who meets the qualifications of section five, article five-l, chapter sixteen of this code and who is employed by the state bureau for senior services to implement the state long-term care ombudsman program;

    (12) (14) "Secretary" means the Secretary of the Department of Health and Human Resources.

§9-6-2. Adult protective services; immunity from civil liability; rules; organization and duties.

    (a) There is hereby established and continued within the Department of Health and Human Resources the system of adult protective services heretofore existing.

    (b) The secretary shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code regarding the organization and duties of the adult protective services system and the procedures to be used by the department to effectuate the purposes of this article. The rules may be amended and supplemented from time to time.

    (c) The secretary shall design and arrange such rules to attain, or move toward the attainment, of the following goals to the extent that the secretary believes feasible under the provisions of this article within the state appropriations and other funds available:

    (1) Assisting adults who are abused, neglected or incapacitated in achieving or maintaining self-sufficiency and self-support and preventing, reducing and eliminating their dependency on the state;

    (2) Preventing, reducing and eliminating neglect and abuse of adults who are unable to protect their own interests;

    (3) Preventing and reducing institutional care of adults by providing less intensive forms of care, preferably in the home;

    (4) Referring and admitting abused, neglected or incapacitated adults to institutional care only where other available services are inappropriate;

    (5) Providing services and monitoring to adults in institutions designed to assist adults in returning to community settings;

    (6) Preventing, reducing and eliminating the exploitation of incapacitated adults and facility residents through the joint efforts of the various agencies of the Department of Health and Human Resources, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities and county prosecutors;

    (7) Preventing, reducing and eliminating abuse and neglect of residents in nursing homes or facilities; and

    (8) Coordinating investigation activities for complaints of abuse and neglect of incapacitated adults and facility residents among the various agencies of the Department of Health and Human Resources, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities, county prosecutors, if necessary, and other state or federal agencies or officials, as appropriate; and

    (9) Providing an employee a written copy of the complaint and allowing employee representation in all administrative hearings, departmental investigations and other departmental proceedings related to any complaint or allegations made against an employee of the department.

    (d) No adult protective services caseworker may be held personally liable for any professional decision or action thereupon arrived at in the performance of his or her official duties as set forth in this section or agency rules promulgated thereupon: Provided, That nothing in this subsection protects any adult protective services worker from any liability arising from the operation of a motor vehicle or for any loss caused by gross negligence, willful and wanton misconduct or intentional misconduct.

    (e) The rules proposed by the secretary shall provide for the means by which the department shall cooperate with federal, state and other agencies to fulfill the objectives of the system of adult protective services.

§9-6-9. Mandatory reporting of incidences of abuse, neglect or emergency situation.

    (a) If any medical, dental or mental health professional, Christian Science practitioner, religious healer, social service worker, law-enforcement officer, humane officer, state or regional ombudsman or any employee of any nursing home or other residential facility has reasonable cause to believe that an incapacitated adult or facility resident is or has been neglected, abused or placed in an emergency situation, or if such person observes an incapacitated adult or facility resident being subjected to conditions that are likely to result in abuse, neglect or an emergency situation, the person shall immediately report the circumstances pursuant to the provisions of section eleven of this article: Provided, That nothing in this article is intended to prevent individuals from reporting on their own behalf.

    (b) In addition to those persons and officials specifically required to report situations involving suspected abuse or neglect of an incapacitated adult or facility resident or the existence of an emergency situation, any other person may make such a report.

    (c) The secretary shall develop a form for the filing of written complaints, as provided by section eleven of this article, and provide these forms to all nursing homes or other residential facilities, hospitals, ombudsmen and adult protective service agencies in this state. The forms shall be designed to protect the identity of the complainant, if desired, and to facilitate the prompt filing of complaints.

    (d) Any employee of the department shall be presented with a copy of the complaint or allegations against him or her and has the right to respond in writing to the complaint.

    (e) Any employee of the department has the right to representation in any administrative process where a complaint is filed or an allegation made.

§9-6-11. Reporting procedures.

    (a) A report of neglect or abuse of an incapacitated adult or facility resident or of an emergency situation involving such an adult shall be made immediately by telephone to the department's local adult protective services agency and shall be followed by a written report by the complainant or the receiving agency within forty-eight hours. The department shall, upon receiving any such report, take such action as may be appropriate and shall maintain a record thereof. The department shall receive such telephonic reports on its twenty-four hour, seven-day-a-week, toll-free number established to receive calls reporting cases of suspected or known adult abuse or neglect.

    (b) A copy of any report of abuse, neglect or emergency situation shall be immediately filed with the following agencies:

    (1) The Department of Health and Human Resources;

    (2) The appropriate law-enforcement agency and the prosecuting attorney, if necessary; or

    (3) In case of a death, to the appropriate medical examiner or coroner's office.

    (c) If the person who is alleged to be abused or neglected is a resident of a nursing home or other residential facility, a copy of the report shall also be filed with the state or regional ombudsman and the administrator of the nursing home or facility.

    (d) The department shall omit from such report in the first instance, the name of the person making a report, when requested by such person.

    (e) Reports of known or suspected institutional abuse or neglect of an incapacitated adult or facility resident or the existence of an emergency situation in an institution, nursing home or other residential facility shall be made, received and investigated in the same manner as other reports provided for in this article. In the case of a report regarding an institution, nursing home or residential facility, the department shall immediately cause an investigation to be conducted.

    (f) Upon receipt of a written complaint, the department shall coordinate an investigation pursuant to section three of this article and applicable state or federal laws, rules or regulations.

    (g) Where a complaint is made against an employee of the department, a written copy of the complaint shall be provided to the employee and to the employee’s representative.

    NOTE: The purpose of this bill concerns complaints made against employees of the Department of Health and Human Resources. The bill permits an employee to have a representative. The bill prohibits a supervisor from acting as that representative. The bill requires the employee to be provided with a written copy of the complaint. The bill provides that an employee may respond in writing to an allegation. The bill also defines terms.

    Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.