SB351 SUB1 CFB
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 351

(By Senators Bailey, Macnaughtan, Miller, Walker,

White, Buckalew, Wagner, Blatnik, Bowman and Chafin)

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(Originating in the Committee on Government Organization;)

[reported February 22, 1996]

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A BILL to amend chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article two-c; and to amend article seven, chapter fifty-five of said code by adding thereto a new section, designated section eighteen, all relating to establishing a central abuse registry; defining terms; requiring certain individuals convicted of a felony or misdemeanor offense with respect to a child or incapacitated adult to be placed on registry; requiring prosecuting attorneys to report certain convictions; permitting disclosure of certain information; providing for expungement of listings in certain circumstances; establishing user fees for registry purposes; establishing service provider responsibilities; and providing limited immunity from suit for residential care facilities, day care centers and home care service providers disclosing employment information.

Be it enacted by the Legislature of West Virginia:
That chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article two-c; and that article seven, chapter fifty-five of said code be amended by adding thereto a new section, designated section eighteen, all to read as follows:
CHAPTER 15. DIVISION OF PUBLIC SAFETY.

ARTICLE 2C. CENTRAL ABUSE REGISTRY.
§15-2C-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) "Central abuse registry" or "registry" means the registry created by this article which shall contain the names of individuals who have been convicted of a felony or a misdemeanor offense constituting abuse, neglect or misappropriation of the property of a child or an incapacitated adult.
(b) "Child abuse and neglect" or "child abuse or neglect" means those terms as defined in section three, article one, chapter forty-nine of this code, and shall include any act with respect to a child which is a crime against the person pursuant to article two, chapter sixty-one of this code, any act which is unlawful pursuant to article eight-d of said chapter sixty-one, and any offense with respect to a child which is enumerated in section three of this article, whether or not the act is prosecuted pursuant to the criminal law of this state.
(c) "Abuse or neglect of an incapacitated adult" means "abuse" "neglect" and "incapacitated adult" as those terms are defined in section one, article six, chapter nine, and shall include any act with respect to an incapacitated adult which is a crime against the person pursuant to article two, chapter sixty-one of this code, and any offense with respect to an incapacitated adult which is enumerated in section three of this article, whether or not the act is prosecuted pursuant to the criminal law of this state.
(d) "Conviction" of a felony or a misdemeanor means an adjudication of guilt by a court or jury following a hearing on the merits, or entry of a plea of guilty or nolo contendere.
(e) "Residential care facility" means any facility where a child or an incapacitated adult resides which is subject to registration, licensure or certification by the department of health and human resources, and shall include nursing homes, personal care homes, residential board and care homes, adult family care homes, group homes, legally unlicensed service providers, residential child care facilities, family based foster care homes, specialized family care homes and intermediate care facilities for the mentally retarded.
(f) "Misappropriation of property" means any act which is a crime against property under article three, chapter sixty-one of this code with respect to a child in a residential care facility or an incapacitated adult in a residential care facility or a child or an incapacitated adult who is a recipient of home care services, whether or not the act is prosecuted pursuant to the criminal law of this state.
(g) "Home care" or "home care services" means services provided to children or incapacitated adults in the home though a hospice provider, a community care provider, a home health agency, through the medicaid waiver program, or through any person when that service is reimbursable under the state medicaid program.
(h) "Requester" means any residential care facility, any state licensed day care center, or any provider of home care services providing to the central abuse registry the name of an individual and other information necessary to identify that individual, and either (1) certifying that the individual is being considered for employment by the requester or for a contractual relationship with the requester wherein the individual will provide services to a child or an incapacitated adult for compensation; or (2) certifying that an allegation of abuse, neglect or misappropriation of property has been made against the individual.
§15-2C-2. Ce

ntral abuse registry; required information;
procedures.
(a) The criminal identification bureau of the West Virginia state police shall establish a central abuse registry, to contain information relating to criminal convictions following reports of child abuse or neglect, abuse or neglect of an incapacitated adult, and misappropriation of property.
(b) The central abuse registry shall contain, at a minimum, information relating to: (1) convictions of a misdemeanor or a felony constituting abuse, neglect or misappropriation of property, by an individual performing services for compensation, within the scope of the individual's employment or contract to provide services, in a residential care facility, in a licensed day care center, or in connection with the provision of home care services; (2) information relating to individuals convicted of specific offenses enumerated in subsection (a), section three of this article with respect to a child or an incapacitated adult; and (3) information relating to all individuals required to register with the West Virginia state police as sex offenders pursuant to the provisions of article eight-f, chapter sixty-one of this code. The central abuse registry shall contain the following information with respect to an individual found to have committed an act of abuse, neglect or misappropriation of property, or an individual convicted of a felony offense:
(1) The individual's full name;
(2) Sufficient information to identify the individual, including date of birth and social security number if available;
(3) Identification of the criminal offense constituting abuse, neglect or misappropriation of property of a child or an incapacitated adult;
(4) For cases involving allegations of abuse, neglect or misappropriation of property of a child or an incapacitated adult in a residential care facility or a day care center, or of a child or an incapacitated adult receiving home care services, sufficient information to identify the location where such documentation of any investigation by the department of health and human resources is on file and the location of pertinent court files; and
(5) Any statement by the individual disputing the allegation, if he or she chooses to make and file one.
(c) Upon conviction in the criminal courts of this state of a misdemeanor or a felony offense constituting child abuse or neglect or abuse or neglect of an incapacitated adult, the individual so convicted shall be placed on the central abuse registry.
§15-2C-3. Reports of certain convictions by prosecuting

attorneys.
(a) The central abuse registry shall maintain information relating to child abuse or neglect, abuse or neglect of an incapacitated adult, and misappropriation of property with respect to individuals convicted of certain offenses pursuant to this code, when the victim of the crime is a child or an incapacitated adult, to include:
(1) First or second degree murder pursuant to section one, article two, chapter sixty-one of this code;
(2) Voluntary manslaughter pursuant to section four, article two, chapter sixty-one of this code;
(3) Attempt to kill or injure by poison pursuant to section seven, article two, chapter sixty-one of this code;
(4) Malicious or unlawful assault pursuant to section nine, article two, chapter sixty-one of this code;
(5) Assault during commission of or attempt to commit a felony pursuant to section ten, article two, chapter sixty-one of this code;
(6) Extortion by threats pursuant to section thirteen, article two, chapter sixty-one of this code;
(7) Abduction of a person or kidnapping or concealing a child pursuant to section fourteen, article two, chapter sixty- one of this code;
(8) Enticing away or otherwise kidnapping any person pursuant to section fourteen-a, article two, chapter sixty-one of this code;
(9) A misdemeanor or felony sexual offense pursuant to article eight-b, chapter sixty-one of this code;
(10) Filming of sexually explicit conduct of minors pursuant to article eight-c, chapter sixty-one of this code;
(11) Misdemeanor or felony child abuse pursuant to article eight-d, chapter sixty-one of this code;
(12) A violent crime against the elderly which is an offense under the provisions of section nine or ten, article two, chapter sixty-one of this code which is subject to the sentencing provisions of section ten-a of said article two; or
(13) A property offense pursuant to article three, chapter sixty-one of this code, with respect to a child in a residential care facility or an incapacitated adult in a residential care facility or a child or an incapacitated adult who is a recipient of home care services, when the individual committing the offense was providing services for compensation in the residential care facility or within the home.
(b) The prosecuting attorneys in each of the fifty-five counties within the state, upon conviction of a misdemeanor, a felony or a lesser included misdemeanor offense for those specific offenses set forth in subsection (a) of this section, shall report the conviction to the central abuse registry, together with such additional information, provided in such form, as may be required by the criminal identification bureau for registry purposes. Reporting procedures shall be developed by the criminal identification bureau in conjunction with the prosecuting attorneys' institute and the office of the administrator of the supreme court of appeals.
(c) Information relating to convictions prior to the effective date of this section of a misdemeanor or a felony constituting child abuse or abuse or neglect of an incapacitated adult shall, to the extent which is feasible and practicable, be placed on the central abuse registry. When any requester requests information related to a named individual, the criminal identification bureau may search other information maintained by the bureau to determine whether that individual has been convicted of offenses which are subject to inclusion on the registry.
§15-2C-4. Disclosure of information.
(a) The information contained in the central abuse registry is confidential, and may not be disclosed except as specifically provided in this section. The criminal identification bureau shall disclose the information described in subdivisions one through three and subdivision five, subsection (b), section two of this article to any requester, except that the name of the victim of the act alleged shall not appear on the information disclosed and shall be stricken from any statement filed by an individual. The department of health and human resources shall certify, not later than fifteen days following the effective date of this section, the list of requesters authorized to obtain registry information, and shall inform the criminal identification bureau promptly of subsequent additions and deletions from the list. The information contained in the registry with respect to an individual shall be provided to that individual promptly upon request. Individuals on the registry requesting registry information shall be afforded the opportunity to file statements correcting any misstatements or inaccuracies contained in the registry. The criminal identification bureau may disclose registry information to authorized law-enforcement and governmental agencies of the United States and its territories, of foreign states and of the state of West Virginia upon proper request stating that the information requested is necessary in the interest of and will be used solely in the administration of official duties and the criminal laws. Agreements with other states providing for the reciprocal sharing of abuse registry information are specifically authorized.
(b) An active file on requests for information by requesters shall be maintained by the criminal identification bureau for a period of one year from the date of a request. If an individual who is the subject of the request is placed on the registry with respect to any allegation within one year of the date of the request, that information shall promptly be disclosed to the requester.
§15-2C-5. Expungement of registry listing.
Registry listings of abuse, neglect or misappropriation of property with respect to an individual shall promptly be expunged in cases where a conviction is vacated or overturned following appeal by a court having jurisdiction; where the record of a conviction is expunged by a court having jurisdiction; or in cases where the individual so convicted is granted executive clemency with respect to the conviction.
§15-2C-6. Fees.
The criminal identification bureau may charge, and any requester shall pay a user charge of thirteen dollars for each request for information made by a requester to the central abuse registry. In order to expedite requests by requesters, the criminal identification bureau may establish a procedure permitting service providers to deposit funds with the bureau in anticipation of requests. Fees pursuant to this section shall be paid into a special account in the state treasury to be expended for registry purposes: Provided, That for and after the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-eight, all expenditures shall be made in accordance with appropriation by the Legislature. Amounts collected which are found from time to time to exceed the funds needed for central abuse registry purposes may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature.
§15-2C-7. Registration of home care agencies required; form of


registration; information to be provided.
(a) In order to permit providers of home care services not otherwise required to be licensed, certified or registered with the department of health and human resources by other provision of this code to access information in the central abuse registry, all home care service providers not currently licensed, certified or registered by the department shall register with the office of health facilities licensure and certification. No fee may be charged for registration. Registration information shall be provided on a registration form, but no provision of information shall be deemed to meet the registration requirement until the signature of the service provider is recorded on the registration form.
(b) Information required for registration shall include the following:
(1) Name, address and telephone number of the service provider;
(2) The geographic area where services are provided to consumers, the number of homes where services are provided and the number of consumers provided service; and
(3) The services, such as nursing care or personal assistance, provided to consumers.
§15-2C-8. Service provider responsibilities.
All residential care facilities, day care centers and home care service providers authorized to operate in West Virginia shall:
(1) Provide notice to current employees of the agency and other persons providing services under a contract with the agency within sixty days of the effective date of this article, and provide notice to any newly hired employee or person at the time an employment or contractual relationship is entered into, which notice shall be in the following form: "NOTICE: All service providers in the state of West Virginia are subject to provisions of law creating a central abuse registry. Any person providing services for compensation to children or to incapacitated adults, who is convicted of a misdemeanor or felony offense constituting abuse, neglect or misappropriation of property of a child or an incapacitated adult, is subject to listing on the central abuse registry. The fact that a person is listed on the registry may be disclosed in specific instances provided by law. Listing on the registry may limit future employment opportunities, including opportunities for employment with residential care facilities, day care centers and home care agencies. It is the policy of __________________ [name of agency] to promptly report all suspected instances of abuse, neglect or misappropriation of property to the proper authorities and to cooperate fully in the prosecution of these offenses."
(2) Contact the abuse registry to verify that applicants selected for employment or other contractual relationship are not listed on the abuse registry prior to the time the individual begins employment or begins providing services to children or incapacitated adults under any contract.
(3) Cooperate fully with law enforcement, prosecuting attorneys and court personnel in criminal prosecutions of acts of child abuse or neglect or abuse or neglect of an incapacitated adult.
(4) Respond promptly to all requests by other service providers for references for former or present employees of the agency, which response may include a subjective assessment as to whether the individual for whom the reference is sought is suited to provide services to children or incapacitated adults.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-18. Limiting liability of home care service providers, day


care centers and residential care facilities
disclosing certain employment information.
When a residential care facility required to be registered, licensed or certified under the laws of the state, a licensed day care center, or an agency providing services in the home to children or incapacitated adults is asked to provide an employment reference with respect to a named individual who provided services to children or incapacitated adults for compensation, no person shall be liable for disclosing information related to the named individual's employment history, including a subjective assessment of whether the named individual is suited to provide services to children or incapacitated adults, unless it is alleged and proven that the information disclosed was false and disclosed with knowledge that the information was false.