H. B. 2817


(By Delegates DeLong, Amores, Perdue and Howard)
[Introduced January 31, 2003; referred to the
Committee on Government Organization 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 seventeen-a, relating to creation of a registry containing names of employees from any agency or organization under the authority of the department of health and human resources who have committed acts of abuse, neglect or misappropriation of property against any person under the care, custody or control of the agency or organization; providing for definitions of certain terms; requiring that each organization and agency under the authority of the department of health and human resources maintain individual employee forms for recording personal information as well as information related to allegations of abuse, neglect or misappropriation of property; addressing how complaints are handled and investigated; providing for appeal by persons determined to have committed any act of misconduct under the provisions of this article; requiring employment screening of applicants for employment; setting forth the secretary of the department of health and human resources' duties under the article; prohibiting the employment of persons whose names are contained on the registry; setting forth the standard of proof to be applied in contested matters involving allegations of misconduct; providing that, pending final outcome of contested matters involving allegations of misconduct, records are not accessible to the public; providing that information contained on the registry is public information; providing a mechanism for removal of names from the registry for good cause; requiring the secretary to propose legislative rules for rehabilitation and behavior modification of persons whose names are included on the registry; and, requiring mandatory reporting by employees and others of instances of abuse, neglect or misconduct they witness subject to the provisions of this article.

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 seventeen-a, to read as follows:
ARTICLE 17A. CENTRAL EMPLOYEE ABUSE REGISTER.

§27-17A-1. Central employee abuse registry act.
(a) Effective the first day of July, two thousand three, 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 of having engaged in abuse or neglect of any child, elderly person or other individual suffering from mental retardation, developmental disability or mental illness, 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, extenuating circumstances shall be considered to have existed.
§27-17A-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
under the care, custody or control of any agency or organization which operates pursuant to the authority of the department of health and human resources.
(d) "Employee" means a person employed by any agency or organization which operates under the authority of the department of health and human resources .
(e) "Department" means the department of health and human resources.
(f) "Agency or organization" means any public or private day care facility, juvenile facility, foster home, group home for children or adults, adoption agency, orphanage, nursing home or personal care home for the elderly, mentally retarded or mentally ill, assisted care home, hospital, clinic or any other facility, home or institution under the auspices or authority of the department of health and human resources that houses, cares for or otherwise has responsibility for the health, safety and well-being of any individual or protected person.
§27-17A-3. Personnel forms.
The department shall, upon the employment of any individual by any agency or organization under the auspices or authority of the department, require the recordation of all personal information considered appropriate by the secretary regarding the individual's background and past employment history on a form to be designed by the secretary or the secretary's designee. In the event an investigation into allegations of abuse necessarily occurs regarding an employee, all aspects of the investigation shall be documented on the employee's form, along with the outcome of the investigation. If formal allegations of abuse or neglect or misappropriation of property concerning any person under the care of any agency or organization of the department are brought, whether the charges are civil in nature, administrative or criminal, they shall be documented on the employee's form. A copy of the form shall be provided to the department's central abuse registry after having made any final determination that the allegations are true.
§27-17A-4. Complaints; investigation.
In the event an employee of any agency or organization is accused of having committed any act of abuse, neglect or misappropriation of property concerning any person under the care of the agency or organization, the allegations shall immediately be reported to the secretary by any employee or representative of the agency or organization receiving the allegation. The allegation shall also be forthwith reported to the appropriate administrative authority immediately responsible for the administration of the particular agency or organization under the department's authority wherein the accused employee is employed. It is the responsibility of the appropriate administrator of the agency or organization involved to make an initial determination concerning the probable accuracy of the complaint. If the administrator concludes the complaint has probable merit he or she shall formally file a written complaint against the employee. If the administrator determines the complaint is minor, then any sanction may solely prescribe supervision at work until adequate time has passed that the administrator determines the employee may be trusted to work unsupervised. If the complaint is determined to be neither minor nor of a sufficient magnitude to require dismissal of the employee, the employee shall be required to appear before the agency or organization's board or other administrative authority to discuss the facts of the complaint. At the time of the appearance, the employee must be advised that if another complaint is brought against him or her and the complaint is determined to be of sufficient magnitude not to be considered minor in nature, then an investigation will ensue to determine the appropriate action to take against the individual. In such case, the individual shall be closely supervised until sufficient time has elapsed in which the administrative authority reasonably concludes the employee may be trusted to work without supervision. In the event any allegation of abuse or neglect is considered sufficiently serious to warrant dismissal of an employee, then the appropriate administrative authority shall immediately conduct an investigation while requiring the accused employee to take leave of absence or otherwise be removed from the worksite wherein the alleged wrongful act or acts occurred. If at the conclusion of the investigation it is determined the allegations have merit, the employee shall immediately be terminated from employment. In all cases, all administrative actions must be recorded on the employee's personnel form as prescribed by section two of this article.
§27-17A-5. Appeal.
Any individual determined to have committed any act of abuse, neglect or misappropriation of property under the provisions of this article has a right to appeal subject to the provisions of article five, chapter twenty-nine-a of this code.
§27-17A-6. Employment screen by department.
When any person applies for employment with the department or any agency or organization under the authority of the department, the department shall require an initial background check be performed of the person so applying. The initial background check shall include a thorough review of the individual's employment history, including a check of the agency or organization's own personnel files to determine if any record of misconduct relative to the applicant exists. In the event nothing appears in this stage of the background check to disqualify the applicant, then the department of health and human resources shall be contacted by the agency or organization concerning the person's application for employment and the department shall conduct a secondary record check of it's central registry of abuse to determine whether any record of misconduct concerning the applicant exists. In the event a record of misconduct exists involving abuse, neglect or misappropriation of property, the department shall communicate to the agency or organization that the person may not be employed because of the risk posed to other persons under the care and responsibility of the department. In the event no record exists against the applicant with the central registry of abuse, then the applicant shall be required to submit to a third stage background check involving a criminal background check on a form to be supplied by the state police to the department. In the event the criminal background check does not reveal any criminal sexual offense convictions, or criminal convictions related to crimes of violence or crimes involving moral turpitude, then the agency or organization wherein the person has applied for employment may employ the person: Provided, That, no stage of the background check herein required may be conducted in any manner unless the applicant has successfully completed the application and selection process of the agency or organization, and but for the background check, the agency or organization intends to offer the applicant employment: Provided, however, That, under no circumstances may an applicant begin working until all stages of the background check have been completed.
§27-1B-7. 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 in violation of the provisions of this article by an employee of any agency or organization operating under the authority of the department.
(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 that 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 provided for under section one of this article, the secretary shall: (1) Notify the employee of his or her inclusion on the registry by certified or registered mail; (2) notify the agency or organization 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.
§27-17A-8. Prohibition against employing or contracting with individuals included in the registry.

No person, agency or organization or other entity operating under the laws of this state may hire, contract with, or employ in any capacity, which involves contact with any person housed, cared for or otherwise under the physical responsibility of the department, 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 agency or organization that hires or renews an employment contract with any person whose name is included on the registry.
§27-1B-9. Standard of proof.
In conducting a hearing, as prescribed under subsection (c), section seven of this article, the hearing examiner shall determine whether clear and convincing evidence exists that the employee has:
(a) Misappropriated the property of an individual under the care, custody or control of any agency or organization under the auspices or authority of the department;
(b) Knowingly abused or neglected an individual under the care, custody or control of any agency or organization under the auspices or authority of the department;
(c) Recklessly abused or neglected an individual under the care, custody or control of any agency or organization under the auspices of authority of the department; or
(d) Negligently abused or neglected an individual under the care, custody or control of any agency or organization under the auspices of authority of the department.
§27-1B-10. 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 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 agency or organization licensed or authorized by the department to offer services to any person 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-11. 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, parameters 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-12. Mandatory report by fellow employees, administrators and supervisors.

Any employee, administrator or supervisor of an agency or organization authorized or licensed by the department of health and human resources to dispense services of any kind to any persons in such agency or organization's care, custody or control, is required to report any incident they witness concerning any abuse, neglect or misappropriation of property of any such person under the care, custody or control of the agency or organization. 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 agency or organization. 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 create a registry containing names of employees from any agency or organization under the authority of the department of health and human resources who have committed acts of abuse, neglect or misappropriation of property against any person under the care, custody or control of the agency or organization. In conjunction with the creation of the registry the bill also contains provisions addressing the following: (1) Providing definitions of certain terms; (2) requiring that each organization and agency under the authority of the department maintain individual employee forms for recording personal information as well as information related to allegations of abuse, neglect or misappropriation of property; (3)addressing how complaints are handled and investigated; (4)providing for appeal by persons determined to have committed any act of misconduct under the provisions of this article; (5)requiring employment screening of applicants for employment; (6)setting forth the secretary of the department of health and human resources' duties under the article; (7) prohibiting the employment of persons whose names are contained on the registry; (8)setting forth the standard of proof to be applied in contested matters involving allegations of misconduct; (9)providing that, pending final outcome of contested matters involving allegations of misconduct, records are not accessible to the public; (10)providing that information contained on the registry is public information; (11)providing a mechanism for removal of names from the registry for good cause; (12)requiring the secretary to propose legislative rules for rehabilitation and behavior modification of persons whose names are included on the registry; and, (13)requiring mandatory reporting by employees and others of instances of abuse, neglect or misconduct they witness subject to the provisions of this article.

This article is new; therefore, strike-throughs and underscoring have been omitted.