H.
B.
4585
(By Delegates Richards and S. Williams)
[Introduced February 23, 1994; referred to the
Committee on Health and Human Resources then Finance.]
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 eighteen, relating to mentally ill persons; creating a behavioral health abuse registry; definitions; reporting requirements; investigations; determination; right to hearing; and criminal penalties.
Be it enacted by the Legislature of West Virginia:
That chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article eighteen, to read as follows:
ARTICLE 18. BEHAVIORAL HEALTH ABUSE REGISTRY.
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27-18-1. Definitions.
The following words when used in this article have meanings ascribed to them in this section, except in those instances where the context clearly indicates a different meaning:
(a) "Behavioral health abuse registry" means the registry created by this article which shall contain the names of those individuals who have been determined to have neglected, abused or misappropriated the property of a recipient of behavioral health services.
(b) "Department" means the West Virginia department of health and human resources.
(c) "Office" means the office of health facility licensure and certification.
(d) "Review board" means the board created by this article which shall be vested with the authority to review reports of neglect, abuse or misappropriation and/or destruction of a recipient's property and to make determinations regarding such reports.
(e) "Secretary" means the secretary for the West Virginia department of health and human resources.
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27-18-2. Behavioral health provider abuse registry.
(a) There is hereby established within the office of health facility licensure and certification of the division of health, department of health and human resources, an abuse registry to contain the names, and other pertinent information, of persons who have been found to have committed acts of abuse, neglect or misappropriation and/or destruction of recipient property. Types of abuse shall include, but not be limited to, physical, psychological, emotional, sexual and/or verbal. Examples of abuse, neglect or misappropriation and/or destruction or a recipient's property may be defined by the department in accordance with its authority to promulgate rules.
(b) The department of health and human resources is hereby authorized to promulgate rules which shall effectuate the provisions of this article.
(c) Any individual who provides medical, remedial or daily living services for hire, to recipients of behavioral health services shall be subject to this article.
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27-18-3. Reporting.
(a) Any employee of a behavioral health facility, or anyone who provides services to a recipient of behavioral health services on a regular or intermittent basis, who has reasonable cause to believe that a recipient has been abused, mistreated or neglected or whose property has been misappropriated shall immediately report such incident to the behavioral health abuse registry.
(b) Any person may make a report if they have reason to believe that a recipient of a facility has been abused, neglected or their property misappropriated.
(c) No person making any oral or written report shall be liable in any civil or criminal action by reason of such report where such report was made in good faith or under the reasonable belief that such abuse, neglect or misappropriation and/or destruction of property has taken place.
(d) No facility shall discharge or in any manner discriminate or retaliate against any person, by any means, who is good faith makes or causes to be made a report, or who testifies or who is about to testify in any proceeding concerning abuse, neglect or misappropriation and/or destruction of property of a recipient of said facility.
(e) The provisions in subsections (c) and (d) of this section shall not apply to any person who has been found by the review board to engage in the abuse, neglect or misappropriation and/or destruction of property of a recipient. Nor shall it apply to any person who has been found to knowingly and willfully make a false allegation.
(f) To the extent permissible by state law, the identity of the reporting individual will be treated as confidential information.
(g) Every report filed with the office shall be made on forms prescribed by the department and shall contain such information requested and deemed necessary by the department.
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27-18-4. Investigations.
(a) Each allegation of abuse, misappropriation and/or destruction of property, or neglect shall be investigated by the office.
(b) Upon a determination by the office that any report submitted to it is without merit, the report shall be expunged from the records of the office and from the individual's file.
(c) The investigation may include any or all of the following elements:
(1) A visit to the facility involved;
(2) A private interview with the recipient in question, if possible;
(3) Observation of the recipient within the facility environment, if possible;
(4) An examination of the recipient's medical and other records, as well as, any other evidence which may be relevant to the issues involved;
(5) Assessment of recipient's physical and mental functional level;
(6) An examination of any documents prepared by the facility which relate to the incident or the facility's investigation of that incident;
(7) An evaluation of the nature, extent and cause or causes of the injury or harm suffered by the recipient in question;
(8) Interviews with any potential witnesses who may possess information relevant to the issues involved and who are reasonably available for such an interview; including any outside facility that delivered medical or behavioral health care services;
(9) An attempt to determine the identity of the person or persons allegedly responsible for the alleged abuse, neglect or misappropriation and/or destruction of property;
(10) An interview with the person or persons allegedly responsible for the incident whenever their identity can be determined, if reasonably possible; and
(11) An evaluation of the environment within the facility and the risks of physical or emotional injury or harm to other recipients.
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27-18-5. Determination.
(a) At the conclusion of the investigation, the review board created in accordance with this article will make a final determination of whether or not sufficient credible evidence exists to sustain the allegations. If such evidence exists, the individual under investigation shall be advised of the allegations and shall be informed of their right to a hearing. He or she shall have the right to review the record or file of the allegations and may correct any inaccuracies or submit additional information. The individual shall be informed by the office of his or her right to be represented at the hearing. If after full disclosure of the penalties and/or consequences that may be asserted, the individual waives his or her right to a hearing, or chooses not to contest the matter, the individual's name shall forthwith be permanently placed on the registry.
(b) The office shall notify the individual by certified mail at the individual's last known address. If certification of delivery is not satisfied, the office shall take positive action to notify the individual of the allegations made against him or her.
(c) The individual has thirty calendar days from the date of receipt or notice to respond to the allegations. If reply is not made within thirty days, the matter shall be considered uncontested and within ten days the individual shall be notified of their permanent inclusion on the abuse registry.
(d) If the right to a hearing has been waived, such waiver must be entered on the registry and reported to the individual within ten calendar days.
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27-18-6. Hearing.
(a) If the individual files an application for a hearing, it shall be held within forty-five days from receipt of such application.
(b) Within twenty days from receipt of the individual's application for a hearing, the office shall notify the individual of time, place and date of the hearing. The hearing shall be held at a place and time that is reasonable for the individual and witnesses to attend.
(c) The hearing will be conducted by a hearing examiner appointed by the secretary.
(d) The individual shall be provided the opportunity to:
(1) Present relevant written or oral evidence;
(2 Present witnesses on his or her behalf; and
(3) Have an attorney or other representative present who can provide evidence or cross-examine witnesses.
(e) The hearing examiner shall make a recommendation to the secretary or his or her designee within thirty days of the conclusion of the hearing. The secretary or his or her designee shall communicate such decision to the office within ten working days after receipt of the hearing examiner's recommendation. If the recommendation is in favor of the individual, the case shall be closed and the individual so notified. If the decision affirms the allegations which are the subject of the investigation and hearing, the individual's name shall be placed on the registry within ten working days.
(f) The individual may appeal the findings of the hearing examiner by filing a civil complaint in the circuit court in the county in which the individual resides or in the circuit court for Kanawha County.
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27-18-7. Criminal penalties.
(a) Any person subject to subsection (a), section three of this article, who witnesses abuse, neglect or misappropriation and\or destruction of property and fails to make a report shall be guilty of a misdemeanor and shall be subject to a fine up to one hundred dollars and/or imprisoned for up to ten days.
(b) Any person having actual care, custody or control of an incapacitated recipient of behavioral health services who:
(1) Abuses or neglects such recipient;
(2) Knowingly permits another person to abuse or neglect a recipient; or
(3) Creates an emergency situation for an incapacitated recipient, is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than fifteen hundred dollars, or imprisoned in the county jail for not less than ninety days nor more than one year, or both fined and imprisoned.
(c) Any person having actual care, custody or control of an incapacitated recipient who, with the intent to abuse or neglect such recipient, willfully creates an emergency situation for an incapacitated recipient, is guilty of a felony, and, upon conviction thereof, shall, in the discretion of the court, be confined in a maximum security facility for not less than two nor more than ten years or be confined in the county jail for not more than twelve months and fined not more than fifteen hundred dollars.
NOTE: The purpose of this bill is to create a behavioral health abuse registry containing the names of individuals who have been determined to have neglected, abused or misappropriated the property of a recipient of behavioral health services.
This article is new; therefore, strike-throughs and underscoring have been omitted.