A BILL to amend and reenact sections one, two, three, eight, nine, ten, eleven and twelve, article six, chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to reporting requirements for complaints of abuse, neglect and exploitation of incapacitated adults or residents in nursing homes or facilities; development of a coordinated investigation system; prohibiting discrimination against persons reporting incidents of abuse, neglect or exploitation; and making technical changes.

Be it enacted by the Legislature of West Virginia:
That sections one, two, three, eight, nine, ten, eleven and twelve, article six, chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and sections two and eight, article five-c, chapter sixteen of said code be amended and reenacted 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" shall mean means any public or nonprofit private agency, corporation, board or organization furnishing protective services to adults;
(2) "Abuse" shall mean means the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult or resident of a nursing home or nursing facility;
(3) "Neglect" shall mean means (i) (A) the failure to provide the necessities of life to an incapacitated adult or resident of a nursing home or nursing facility with intent to coerce or physically harm such the incapacitated adult or resident; (ii) (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) "Incapacitated adult" shall mean 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) "Emergency" or "emergency situation" shall mean means a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated adult.
(6) "Exploitation" means taking unjust advantage of an incapacitated adult or resident, including, but not limited to, the theft, misappropriation, destruction or damage of personal property.
(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 any other duly appointed person.
(8) "Nursing home" or "facility" means any institution, residence or place, or any part or unit thereof, that is subject to the provisions of article five-c, chapter sixteen of this code.
(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;
(10) "Resident" means an individual living in a nursing home or facility.
(11) "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.
(12) "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.
(13) "Secretary" means the secretary of the department of health and human resources.
§9-6-2. Adult protective services; rules and regulations;
organization and duties.
(a) There is hereby established and continued within the department of health and human services resources the system of adult protective services heretofore existing. The commissioner shall by regulation prescribe the organization and duties of and procedures which shall be used by the department to effectuate the purposes of this article, which regulations may be amended and supplemented from time to time.
(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 commissioner secretary shall design and arrange such regulations rules to attain, or move toward the attainment of the following goals, to the extent that the commissioner 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 and exploitation 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; and
(5) Providing services and monitoring to adults in institutions designed to assist adults in returning to community settings;
(6) Preventing, reducing and eliminating abuse, neglect and exploitation of residents in nursing homes or facilities; and
(7) Coordinating investigation activities for complaints of abuse, neglect or exploitation of adults and residents among the department of health and human resources, the adult protective services system, the state and regional long-term care ombudsman, administrators of nursing homes or facilities, the office of health facility licensure and certification, the prosecutor, if necessary, and any other appropriate state or federal agencies. Such regulations
(d) The rules proposed by the secretary shall provide:
(1) 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; and
(2) Specify that investigations of complaints of exploitation of nursing home residents shall be conducted primarily by the administrator of the nursing home involved and the state or regional ombudsmen.

§9-6-3. Cooperation among agencies; termination and reduction of assistance by commissioner.

The department may cooperate with any adult protective services agency and may at any time establish or increase, and reduce or terminate any assistance granted to or through any adult protective services agency: Provided, That no reduction or termination shall be made unless the commissioner, in his discretion, first determines that such protective services agency unreasonably fails or refuses to use or apply such assistance in a manner which promotes the goals established under section two of this article: Provided, however, That assistance granted to a recipient client of the department shall not be withheld or reduced but shall instead be paid in whole or in part to some other protective services agency, which the commissioner finds will better serve the interests of the recipient client or to the person having actual custody of such recipient client.
In the case of a refusal to establish, maintain, increase, reduce or terminate any assistance to a protective services agency client or person having custody, such agency, client or person may within thirty days thereof demand a hearing on such failure which hearing shall be conducted in accord with the provisions of law relating to hearings upon a refusal of assistance by the department in any other case and shall include the right of appeal to an appropriate circuit court as in such cases of refusal of assistance.
The department, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or facilities, the office of health facility licensure and certification, county prosecutors and any other applicable state or federal agency shall coordinate and cooperate among each other for the purposes of observing, reporting, investigating and acting upon complaints of abuse, neglect or exploitation of any incapacitated adult or resident in this state.

§9-6-8. Confidentiality of records.

(a) Except as otherwise provided in this section, all records of the department, state and regional long-term care ombudsmen, nursing home or facility administrators, the office of health facility licensure and certification and all protective services agencies concerning an adult or resident under this article shall be confidential and shall not be released, except in accordance with the provisions of section eleven of this article.
(b) Unless the adult concerned is receiving adult protective services or unless there are pending proceedings with regard to such the adult, the records maintained by the adult protective services agency shall be destroyed two years following their preparation. A circuit court or the supreme court of appeals may subpoena such records, but shall, before permitting their use in connection with any court proceeding, review the same for relevancy and materiality to the issues in the proceeding, and may issue such order to limit the examination and use of such records or any part thereof, having due regard for the purposes of this article and the requirements of the litigation as shall be just.

§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, peace officer, or law-enforcement officer, state or regional ombudsman or any employee of any nursing home or nursing facility has reasonable cause to believe that an incapacitated adult or resident is neglected, abused, exploited or placed in an emergency situation, or if such person observes an incapacitated adult or resident being subjected to conditions that are likely to result in abuse, neglect, exploitation or an emergency situation, the person shall immediately report the circumstances or cause a report to be made to the department's local protective services agency 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 or exploitation of an incapacitated adult or resident or the existence of an emergency situation, any other person may make such a report.
(c) The department shall develop and design a multi-part form for the filing of complaints as required by this section and provide the forms to all nursing homes or nursing facilities, hospitals, ombudsmen, and adult protective service agencies in this state. All complaints of abuse, neglect or exploitation shall be made on the multi-part forms and delivered by the complainant to the persons or agencies as required by section eleven. The forms shall be designed to protect the identity of the complainant, if desired, and to facilitate the filing of the complaint with each agency.

§9-6-10. Mandatory reporting to medical examiner or coroner; postmortem investigation.

(a) Any person or official who is required under section nine of this article to report cases of suspected abuse or neglect and who has probable cause to believe that an incapacitated adult or resident has died as a result of abuse or neglect shall report that fact to the appropriate medical examiner or coroner.
(b) Upon the receipt of such a report, the medical examiner or coroner shall cause an investigation to be made and shall report the findings to the local law-enforcement agency, the local prosecuting attorney, the department's local adult protective services agency, and, if the institution making a report is a hospital, nursing home or nursing facility, to the administrator of the hospital, nursing home or nursing facility, the state and regional long-term care ombudsman and the office of health facility licensure and certification.
(c) Upon request, the medical examiner or coroner may advise a responsible family member or the legal representative of the decedent that an investigation has been made pursuant to the provisions of this section: Provided, That nothing in this section shall be construed to require the medical examiner or coroner to reveal the results of such an investigation.

§9-6-11. Reporting procedures.

(a) A report of neglect, or abuse or exploitation of an incapacitated adult or resident or of an emergency situation involving such an adult a person shall be made immediately by telephone to the department's local adult protective services agency and shall be followed by a written report within forty- eight hours. The written report shall be filed by the complainant on the multi-part form provided by the department. 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, exploitation or emergency situation shall be made available immediately to the filed with the following agencies:
(1) The department of health and human services;
(2) The local adult protective services agency;
(3) If the person who is alleged to be abused, neglected or exploited is a resident of a nursing home or facility, the state or regional ombudsman, the administrator of the nursing home or facility and the office of health facility licensure and certification;
(4) The responsible family member or legal representative of the person alleged to be abused, neglected or exploited;
(5) The appropriate law-enforcement agency and the prosecuting attorney, if necessary, or in
(6) In case of a death, to the appropriate medical examiner or coroner's office: Provided, That the
(c) The department shall omit from such report in the first instance, the name of the person making a report, when requested by such person.
(d) Reports of known or suspected institutional abuse, or neglect or exploitation of an incapacitated adult or resident or the existence of an emergency situation in an institution or nursing home or 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 or nursing home or facility, the department shall immediately cause an investigation of the institution, nursing home or nursing facility to be conducted.
(e) Whenever a complaint is filed with the adult protective services agency, the agency shall forward a copy of the complaint to the responsible family member and legal representative of the adult or resident affected, and shall provide them with copies of any subsequent reports arising out of the complaint and investigation.
(f) Upon receipt of their respective copies of a written complaint, each department, agency or person shall conduct an investigation of the complaint pursuant to the applicable state or federal laws, rules or regulations.

§9-6-12. Reporting person's immunity from liability.

(a) Any person who in good faith makes or causes to be made any report permitted or required by this article shall be immune from any civil or criminal liability which might otherwise arise solely out of making such report.
(b) No nursing home may discharge or in any manner discriminate against any resident, legal representative or employee for the reason that the resident, legal representative or employee has filed a complaint or participated in any proceeding specified in this article.
(c) Violation of this prohibition by any nursing home constitutes ground for the suspension or revocation of the license of the nursing home as provided in section eleven, article five-c, chapter sixteen of this code.
(d) Any type of discriminatory treatment of a resident, legal representative or employee by whom, or upon whose behalf, a complaint has been submitted or any proceeding instituted under this article within one hundred eighty days of the filing of the complaint or the institution of such action, shall raise a rebuttable presumption that such action was taken by the nursing home in retaliation for such complaint or action.