Senate Bill No. 151
(By Senators Bowman, McKenzie and Caldwell)
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[Introduced January 10, 2002; 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;
requiring 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 two, 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.