Senate Bill No. 429

(By Senators Macnaughtan, Bowman, Wiedebusch, Walker and Sharpe)


[Introduced February 17, 1995; referred to the Committee
on Health and Human Resources; and then to the Committee on Finance.]

A BILL to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article five-m, relating to establishing a home care abuse registry.

Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article five-m, to read as follows:
§16-5M-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) "Home care 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 home care 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 patient's/client's property and to make determinations regarding such reports.
(e) "Secretary" means the secretary for the West Virginia department of health and human resources.
(f) "Abuse" definitions and examples include, but are not limited to, the following:
(1) Physical abuse:
(A) Striking the patient/client with a part of the body or with an object: Nontherapeutic shoving, pushing, pulling or twisting any part of the patient/client's body with fingers or nails, burning or stick patient/client with an object;
(B) Physical contact intentionally or through carelessness that results in or is likely to result in the death, physical injury, pain or psychological harm to the patient/client. (Examples of psychological harm include a noticeable level of fear, anxiety, agitation or emotional distress in the patient/ client);
(C) Use of any restraints, involuntary seclusion or isolation of client as a method of punishing a patient/client;
(D) Use of any restraints in an unreasonable manner, such as tying the hands or legs together;
(E) Use of physical restraints other than approved by the organization's human rights committee;
(F) Acts of retaliation, even in response to a physical attack, constitute abuse.
(2) Verbal abuse:
(A) Statements made to a patient/client which result in ridicule or humiliation of the patient/client. (Inappropriate verbal reaction to a patient/client's attack would not necessarily be considered abuse unless the staff had a pattern of responding this way;)
(B) Any use of oral, written or gestured language that includes cursing, disparaging and derogatory term to patients/clients or their families, or within their hearing distance, to describe patients/clients, regardless of their age, ability to comprehend or disability.
(3) Sexual abuse:
Include, but is not limited to, sexual harassment, sexual coercion or sexual assault or allowing a home care patient/client be sexually abused by another person, or inciting any of the above.
(4) Psychological/Emotional Abuse:
(A) Humiliation, harassment, malicious teasing, threats of punishment or deprivation;
(B) Not reasonably considering a patient's/client's wishes, punatively restricting contact with family, friends or other patients/clients, or ignoring patients'/clients' needs for verbal and emotional contact;
(C) Violation of patients'/clients' right to confidentiality by discussing patients'/ clients' condition, treatment or known personal affairs with anyone who does not have a right to the information.
(5) Neglect.
(A) Failure to provide adequate nutrition and fluids in accordance with the patient's/client's plan of care unless specified through advanced directives;
(B) Failure to take precautionary measures, such as the use of protective devices, as ordered by physician, the federal office of safety and health administration, to protect the health and safety of the patient/client;
(C) Intentional lack of attention to physical needs including, but not limited to, toileting and bathing for the patient as directed by the patient's plan of care;
(D) Failure to provide services in accordance with the patient's/client's plan of care that results in harm, such as not changing an incontinent patient/client or leaving them in a soiled bed;
(E) Failure or refusal to provide a service in accordance with the patient's/client's plan of care for the purpose of punishing a patient/client;
(F) Failure to notify a responsible person in the event of a significant change in the patient's/client's physical, mental or emotional condition that a prudent person would recognize;
(G) Failure to notify a responsible person in the event of an incident involving the patient/client such as failure to report a fall or conflict between patients/clients that result in injury or possible injury;
(H) Failure to report observed or suspected abuse, neglect, or intentional damage or misappropriation of patient's/client's property.
(6) Misappropriation of patient's/client's property:
(A) Theft or attempted theft of a patient's/client's money or personal property;
(B) Theft of patient's/client's medication;
(C) Inappropriate use of a patient's/client's funds or property.
(g) "Home care agency" means a Class I or Class II home care agency.
(h) "Hospice" means a coordinated program of home and inpatient care provided directly or through an agreement under the direction of an identifiable hospice administration which provides palliative and supportive medical and other health services to terminally ill individuals and their families. Hospice utilizes a medically directed interdisciplinary team. A hospice program of care provides care to meet the physical, psychological, social, spiritual and other special needs which are experienced during the final stages of illness and during dying and bereavement.
(i) "Class I home care agency" means an organization or part thereof, staffed and equipped to provide private duty home care or skilled nursing and at least one of the following services: Physical therapy, occupational therapy, speech pathology, medical, social or home health aide services intended for the aged, disabled, ill or infirm on a part-time or intermittent basis in their places of residence. This is also inclusive of services provided by licensed hospices.
(j) "Class II home care agency" means any organization or part thereof exclusive of Class I home care agencies and hospice agencies, which supplies, arranges or refers personnel to provide home care services for which that organization receives a fee, consideration or compensation of any kind. The term includes, but is not limited to: (1) Homemaker/home care aide providers; (2) companion care providers; (3) registry services; (4) intravenous therapy providers; (5) in-home dialysis providers; (6) durable medical equipment providers who offer an ongoing complementary or billable service in conjunction with providing the equipment; and (7) government departments and/or contracted agencies such as, but not limited to, area agencies on aging, senior centers, mental health centers, case management agencies which provide direct home care or habilitative/rehabilitative services. The term does not include: (1) Hospice providers, who are already licensed in West Virginia and included as a Class I home care agency; (2) volunteer providers or individuals who provide a home care service without a contract or other business relationship with a Class I or Class II home care agency; or (3) services which are provided under a written contract with a licensed home care agency.
§16-5M-2. Home care 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 patient/client 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 of a patient's/client's property may be defined by the department in accordance with its authority to promulgate rules, in addition to definitions listed above.
(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 employed by a home care agency with authority to provide home care services in West Virginia, shall be subject to this article.
§16-5M-3. Reporting.
(a) Any employee of a home care agency who has reasonable cause to believe that a patient/client has been abused, mistreated or neglected or whose property has been intentionally damaged or misappropriated shall immediately report such incident to the home care abuse registry.
(b) Any person may make a report if they have reason to believe that a recipient of services of the agency has been abused, neglected or their property misappropriated or intentionally damaged.
(c) No person making any oral or written report shall be liable in any civil or criminal action by reason of such report where the report was made in good faith or under the reasonable belief that the abuse, neglect or misappropriation and/or destruction of property has taken place.
(d) No agency shall discharge or in any manner discriminate or retaliate against any person, by any means, who in good faith make 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 patient/client of said agency.
(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.
§16-5M-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 not substantiated, the report shall be kept for two years. A letter will be sent to the person informing them that the report will be maintained for two years and may be brought back into subsequent investigation if future reports of abuse are received. If no further reports of abuse are received, 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 agency or home involved;
(2) A private interview with the patient/client or guardian in question, if possible;
(3) Observation of the patient/client within the service environment, if possible;
(4) An examination of the patient/client medical and other records, as well as, any other evidence which may be relevant to the issue involved;
(5) Assessment of patient's/client's physical and mental functional level;
(6) An examination of any documents prepared by the agency which relate to the incident or the agency's investigation of that incident;
(7) An evaluation of the nature, extent and cause or causes of the injury or harm suffered by the patient/client in question;
(8) Interviews with any potential witnesses or family member or care giver who may possess information relevant to the issues involved and who are reasonably available for such an interview; including any outside agencies that delivered medical or home 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;
(11) An evaluation of the environment within the agency or home and risks of physical or emotional injury or harm to other patients/clients.
§16-5M-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 all reasonable actions to attempt 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.
§16-5M-6. Hearing.
(a) If the individual files an application for a hearing, it shall be held within forty-five days from receipt of the 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 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;
(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.
§16-5M-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 patient's/client's 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 patient/client of behavioral health services who:
(1) Abuses or neglects such patient/client;
(2) Knowingly permits another person to abuse or neglect a patient/client shall be subject to the penalties outlined in WVC 9-6-15.
§16-5M-8. Home care agencies responsibilities.
(a) All home care agencies authorized to operate in West Virginia shall adopt and implement written policies and procedures for the following:
(1) Notification to employees of the agency that they are subject to an abuse registry and training in adherence to the legislation;
(2) Training for staff in use of nonviolent intervention strategies for dealing with home care patient's/client's inappropriate behavior. (Inappropriate behavior defined as actions that are disruptive to staff and patients/clients; operation and physical endangerment to self and/or others);
(3) Procedures for contacting the abuse registry to verify home care job applicants selected for employment who are not listed on the abuse registry.
(b) These policies and procedures must ensure that all incidents of suspected abuse, neglect or misappropriation of property are reported to the home care abuse registry of the office of health facility licensure and certification and the local adult protective services or child protective services office law-enforcement agency as required.
(c) All home care agencies shall adopt personnel policies which shall include actions to be taken in cases where employees are suspected of adult abuse or neglect. There shall be no less than suspension until investigations are completed.

NOTE: The purpose of this bill is to establish a Home Care Abuse Registry.

Article five-m, chapter sixteen is new; therefore, strike-throughs and underscoring have been omitted.