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Introduced Version Senate Bill 592 History

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Key: Green = existing Code. Red = new code to be enacted


Senate Bill No. 592

(By Senators Bowman, McKenzie and Caldwell)

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[Introduced March 26, 2001; referred to the Committee on the Judiciary.]

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A BILL to amend chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-b, relating to creation of a registry containing names of employees who have committed acts of abuse, neglect or misappropriation of property from persons suffering from mental retardation or a developmental disability; names to be included upon clear and convincing evidence of wrongful acts; providing extenuating circumstances may excuse inclusion of a name on the registry; requirement that secretary of health and human resources review recommended decision of hearing examiner to determine if a person's name is included on the registry; providing definitions; setting forth the duties of the secretary of health and human resources; prohibiting the employment of persons whose names appear on the registry by certain entities; providing for the standard of proof in reaching a determination that a person has committed acts that justify inclusion on the registry; providing that records pending an investigation are not public record but that information on the registry is public record upon a final determination that a person's name shall be included; providing for a mechanism in which a person's name may be removed from the registry; directing the secretary to propose legislative rules for rehabilitation or behavior modification programs; and requiring mandatory reporting by employees, administrators and supervisors who witness wrongful acts.

Be it enacted by the Legislature of West Virginia:
That chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article one-b, to read as follows:
ARTICLE 1B. MENTAL RETARDATION/DEVELOPMENTAL DISABILITY EMPLOYEE ABUSE REGISTER.

§27-1B-1. The mental retardation/developmental disability employee abuse registry act.

(a) Effective the first day of July, two thousand one, the department of health and human resources shall create and maintain a database with the names, photographs and employment records involving all employees who have been found by the department or any mental health facility or other governmental agency or tribunal by, at least, clear and convincing evidence, of having engaged in abuse or neglect of an individual suffering from mental retardation or a developmental disability, or of having misappropriated the property of such an individual. The database shall be made available to the state police.
(b) The
secretary may not include in the registry the name of an individual who has been found not guilty by a court or jury of an offense arising from the same facts that led to the allegation of abuse, neglect or misappropriation of property. The secretary is not required to include a person's name on the registry in the event he or she finds that extenuating circumstances exist which would excuse inclusion: Provided, That if the secretary finds that an employee was required to act in self defense that extenuating circumstances shall be considered to have existed.
(c) In the event an allegation exists against a department
employee, the secretary shall review the hearing examiner's recommended decision, if any, as provided for in this article, in determining whether the employee's name is included in the registry. The secretary is required to include the employee in the registry in the event a hearing examiner's recommended decision finds that abuse, neglect or misappropriation of property occurred unless compelling reasons exist to justify exclusion of the employee's name.
§27-1B-2. Definitions.
(a) "Abuse" means the use of physical force that can reasonably be expected to result in physical harm, or unlawful sexual conduct or sexual contact, or purposely threatening, coercing, intimidating, harassing, or humiliating an individual by words or acts.
(b) "Neglect" means failing to provide an individual with any treatment, care, goods, or services that are necessary to maintain the health and safety of the individual by one who has a duty pursuant to their employment to provide same.
(c) "Misappropriation" means depriving, defrauding, or otherwise obtaining property by any unlawful means from a person suffering from mental retardation or a developmental disability. For the purposes of this article, "mental retardation" has the meaning as prescribed under section two, article one of this chapter.
(d) "Employee" means a person employed by or under the authority of the department of health and human resources
or at any mental health facility as that term is defined under section nine, article one of this chapter or at any entity existing under the laws of this state that renders services to mentally retarded individuals or persons with developmental disabilities.
§27-1B-3. Duties of
secretary of department of health and human resources .
The
secretary of the department of health and human resources has the following duties:
(a) The
secretary , or his or her designee, is required to review each report he or she receives of abuse, neglect, or misappropriation of property by an employee allegedly committed against a person suffering from mental retardation or a developmental disability: Provided, That the secretary may not review any report related to a public children services agency until the agency has completed its investigation and issues a final report;
(b) The
secretary shall either investigate an allegation and make findings, or adopt the findings of an investigation or review conducted by another agency of government and determine whether there is a reasonable basis to conclude abuse, neglect or misappropriation of property has occurred;
(c) In the event the
secretary determines a reasonable basis exists to conclude that abuse, neglect or misappropriation of property has occurred, he or she shall proceed by affording the accused employee an opportunity to a hearing to contest the conclusion that abuse, neglect or misappropriation of property has occurred, pursuant to the provisions of article five, chapter twenty-nine-a of this code. The secretary shall appoint an independent hearing examiner to conduct the hearing: Provided, That no hearing may commence and proceed in the event a criminal proceeding concerning the same alleged abuse, neglect or misappropriation is pending or in progress;
(d) When an employee is included in the registry, the
secretary shall: (1) Notify the employee of his or her inclusion on the registry by certified or registered mail; (2) notify the mental health facility, governmental agency or other entity that employs or contracts with the employee; (3) notify the person against whom the employee was found to have committed an act or acts that justify inclusion on the registry and, additionally, notify that person's legal guardian, if any; (4) notify the state attorney general, the county prosecuting attorney of the county wherein the alleged abuse, neglect or misappropriation of property occurred, and the state police; and (5) in the event the employee is licensed by any governmental professional occupational board to engage in any profession in which the alleged abuse, neglect, or misappropriation of property occurred, then to notify the professional occupational board of the inclusion.
§27-1B-4. Prohibition against employing or contracting with individuals included in the registry.

No person, mental health facility, governmental agency or other entity operating under the laws of this state may hire, contract with, or employ in any capacity, which involves contact with mentally retarded individuals or persons with developmental disabilities, any person who has been included in the registry. Except in cases of gross negligence or willful or wanton misconduct, no person, facility, governmental agency or other entity who refuses to hire or retain an individual as an employee whose name is included on the registry may be held civilly liable. It shall be considered good cause to terminate an employee who is included on the registry and the employee may not be entitled to unemployment compensation benefits as provided for under chapter twenty-one-a of this code. The department
shall revoke the operating authority or licensure of any mental health facility or other entity that renders services to mentally retarded individuals or persons with developmental disabilities that hires or renews an employment contract with any person whose name is included on the registry.
§27-1B-5. Standard of proof.
In conducting a hearing, as prescribed under subsection (c), section three of this article, the hearing examiner shall determine whether clear and convincing evidence exists that the employee has committed any of the following:
(a) Misappropriated the property of an individual with mental retardation or a developmental disability;
(b) Knowingly abused or neglected an individual with mental retardation or a developmental disability;
(c) Recklessly abused or neglected an individual with mental retardation or a developmental disability with resulting physical harm; or
(d) Negligently abused or neglected an individual with mental retardation or a developmental disability with resulting physical harm.
§27-1B-6. Records, pending final outcome, not accessible to public; information on registry is public record.

(a) The files and records of the department of health and human resources
which are generated or accumulated under the provisions of this article pursuant to an ongoing investigation may not be released as public records until a final determination is made that a person's name shall be included on the registry. The secretary shall, however, make investigatory records available, upon request, to the attorney general of this state, any county prosecuting attorney of this state, or any law-enforcement agency operating under the authority of this state.
(b) Upon a final determination that an employee has committed acts of abuse, neglect or misappropriation and absent compelling reasons not to include the employee's name, the employee's name and the information accumulated concerning the final determination shall be included in the registry. Upon inclusion in the registry, the information is public information. When the department
receives an inquiry, with satisfactory identifying information, concerning whether a person's name is included on the registry, it shall inform the person so inquiring whether the person's name is included on the registry. Any mental health facility, governmental agency or other entity licensed or authorized to offer services to any person suffering from mental retardation or a developmental disability shall inquire whether any prospective or existing employee is included on the registry. Failure to do so shall be considered malfeasance in office.
§27-1B-7. Removal of name from registry for good cause; secretary to propose legislative rules for rehabilitation or behavior modification program.

An individual included on the registry may petition the
secretary for removal of his or her name from the registry. The secretary shall remove an individual's name and any identifying or other existing information concerning the individual from the registry if good cause exists to do so. For the purposes of this section, good cause is considered to exist if a person satisfactorily completes any sanctioned rehabilitation or behavior modification program designed to rehabilitate the person from committing further acts of abuse, neglect or misappropriation. The secretary shall propose rules for legislative approval pursuant to the provisions of article three, chapter twenty-nine-a of this code, designed to provide goals, perimeters and performance standards for any rehabilitation or behavior modification program designed to rehabilitate a person whose name has been included on the registry.
§27-1B-8. Mandatory report by fellow employees, administrators and supervisors.

Any employee, administrator or supervisor of a mental health facility, hospital, governmental agency or other entity authorized or licensed by the department of health and human resources
to dispense services of any kind to persons suffering from mental retardation or a developmental disability is required to report any incident they witness concerning any abuse, neglect or misappropriation of property of any person suffering from mental retardation or a developmental disability. Any employee, administrator or supervisor who fails to report as required by this section shall be suspended from employment without pay for six weeks by the mental health facility, hospital, governmental agency or other entity. If the employee, administrator or supervisor fails a second time to make a report as required by this section, he or she shall be subject to immediate termination from employment and shall be considered to have been terminated for good cause.


NOTE: The purpose of this bill is to
provide for a registry containing names of employees who have committed acts of abuse, neglect or misappropriation of property from persons suffering from mental retardation or a developmental disability. Names are only to be included upon clear and convincing evidence of wrongful acts as determined by the secretary. The bill provides further that extenuating circumstances may excuse inclusion of a name on the registry. The secretary is directed to review the recommended decision of a hearing examiner, if it exists, to determine if a person's name should be included on the registry. The bill also provides certain definitions and sets forth the duties of the secretary of health. It also prohibits the employment of persons whose names appear on the registry by certain entities while providing for the standard of proof in reaching a determination that a person has committed acts that justify inclusion on the registry. Additionally, it provides that records pending an investigation are not public record but that information on the registry is public record upon a final determination that a person's name will be included in the registry. The bill provides for a mechanism in which a person's name may be removed from the registry while directing the secretary to propose legislative rules for rehabilitation or behavior modification programs upon which a petition might be based. Finally, it includes mandatory reporting requirements for employees, administrators and supervisors who witness wrongful acts.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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