Senate Bill No. 286
(By Senator Prezioso, Bailey, Edgell, Foster, Hunter,
Kessler, Minard, Unger, Deem, Guills, Yoder, Love, McCabe,
Plymale and Jenkins)
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[Introduced January 21, 2008; referred to the Committee on Health
and Human Resources; and then to the Committee on the Judiciary.]
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A BILL to amend and reenact §9-6-2 of the Code of West Virginia,
1931, as amended; and to amend and reenact §49-6A-9 of said
code, all relating to personal immunity from civil liability
for adult protective service workers and child protective
service workers performing employment-related duties and
responsibilities within their official capacity.
Be it enacted by the Legislature of West Virginia:
That §9-6-2 of the Code of West Virginia, 1931, as amended, be
amended and reenacted; and that §49-6A-9 of said code be amended
and reenacted, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 6. SOCIAL SERVICES FOR ADULTS.
§9-6-2. Adult protective services; immunity from civil liability;
rules; organization and duties.
(a) There is hereby established and continued within the
Department of Health and Human Resources the system of adult
protective services heretofore existing.
(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 secretary shall design and arrange such rules to
attain, or move toward the attainment of the following goals, to
the extent that the 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 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;
(5) Providing services and monitoring to adults in
institutions designed to assist adults in returning to community
settings;
(6) Preventing, reducing and eliminating the exploitation of
incapacitated adults and facility residents through the joint
efforts of the various agencies of the Department of Health and
Human Resources, the adult protective services system, the state
and regional long-term care ombudsmen, administrators of nursing
homes or other residential facilities and county prosecutors;
(7) Preventing, reducing and eliminating abuse and neglect of
residents in nursing homes or facilities; and
(8) Coordinating investigation activities for complaints of
abuse and neglect of incapacitated adults and facility residents
among the various agencies of the Department of Health and Human
Resources, the adult protective services system, the state and
regional long-term care ombudsmen, administrators of nursing homes
or other residential facilities, county prosecutors, if necessary,
and other state or federal agencies or officials, as appropriate.
(d) No adult protective service caseworker may be held
personally liable and he or she is immune from suit for any claim
for damages for loss of property or personal injury or other civil
liability caused by, or arising out of, any actual or alleged act,
error or omission that occurred, or that the person against whom the claim is made had a reasonable basis for believing occurred
within the scope of his or her employment, duties or
responsibilities including, but not limited to, those goals, duties
and responsibilities set forth in subsection (c) of this section:
Provided, That nothing in this subsection protects any such person
from suit or liability for any damage, loss, injury or liability
caused by the intentional or willful and wanton misconduct of that
person.
(d) (e) The rules proposed by the secretary shall 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.
CHAPTER 49. CHILD WELFARE.
ARTICLE 6A. REPORTS OF CHILDREN SUSPECTED TO BE ABUSED OR
NEGLECTED.
§49-6A-9. Establishment of child protective services; general
duties and powers; immunity from civil liability;
cooperation of other state agencies.
(a) The state department shall establish or designate in every
county a local child protective services office to perform the
duties and functions set forth in this article.
(b) The local child protective service shall investigate all
reports of child abuse or neglect:
Provided, That under no
circumstances shall investigating personnel be relatives of the accused, the child or the families involved. In accordance with
the local plan for child protective services, it shall provide
protective services to prevent further abuse or neglect of children
and provide for or arrange for and coordinate and monitor the
provision of those services necessary to ensure the safety of
children. The local child protective service shall be organized to
maximize the continuity of responsibility, care and service of
individual workers for individual children and families:
Provided,
however, That under no circumstances may the secretary or his or
her designee promulgate rules or establish any policy which
restricts the scope or types of alleged abuse or neglect of minor
children which are to be investigated or the provision of
appropriate and available services.
Each local child protective service office shall:
(1) Receive or arrange for the receipt of all reports of
children known or suspected to be abused or neglected on a
twenty-four hour, seven-day-a-week basis and cross-file all such
reports under the names of the children, the family and any person
substantiated as being an abuser or neglecter by investigation of
the Department of Health and Human Resources, with use of such
cross-filing of such person's name limited to the internal use of
the department;
(2) Provide or arrange for emergency children's services to be
available at all times;
(3) Upon notification of suspected child abuse or neglect,
commence or cause to be commenced a thorough investigation of the
report and the child's environment. As a part of this response,
within fourteen days there shall be a face-to-face interview with
the child or children and the development of a protection plan, if
necessary for the safety or health of the child, which may involve
law-enforcement officers or the court;
(4) Respond immediately to all allegations of imminent danger
to the physical well-being of the child or of serious physical
abuse. As a part of this response, within seventy-two hours, there
shall be a face-to-face interview with the child or children and
the development of a protection plan which may involve
law-enforcement officers or the court; and
(5) In addition to any other requirements imposed by this
section, when any matter regarding child custody is pending the
circuit court or family law master may refer allegations of child
abuse and neglect to the local child protective service for
investigation of the allegations as defined by this chapter and
require the local child protective service to submit a written
report of the investigation to the referring circuit court or
family law master within the time frames set forth by the circuit
court or family law master.
(c) In those cases in which the local child protective service
determines that the best interests of the child require court action, the local child protective service shall initiate the
appropriate legal proceeding.
(d) The local child protective service shall be responsible
for providing, directing or coordinating the appropriate and timely
delivery of services to any child suspected or known to be abused
or neglected, including services to the child's family and those
responsible for the child's care.
(e) To carry out the purposes of this article, all
departments, boards, bureaus and other agencies of the state or any
of its political subdivisions and all agencies providing services
under the local child protective service plan shall, upon request,
provide to the local child protective service such assistance and
information as will enable it to fulfill its responsibilities.
(f)(1) In order to obtain information regarding the location
of a child who is the subject of an allegation of abuse or neglect,
the Secretary of the Department of Health and Human Resources may
serve, by certified mail or personal service, an administrative
subpoena on any corporation, partnership, business or organization
for the production of information leading to determining the
location of the child.
(g) No child protective service caseworker may be held
personally liable and he or she is immune from suit for any claim
for damage for loss of property or personal injury or other civil
liability caused by, or arising out of, any actual or alleged act, error or omission that occurred, or that the person against whom
the claim is made had a reasonable basis for believing their action
occurred within the scope of his or her employment, duties or
responsibilities including, but not limited to, those goals, duties
and responsibilities set forth in subsection (b) of this section:
Provided, That nothing in this subsection protects any such person
from suit or liability for any damage, loss, injury or liability
caused by the intentional or willful and wanton misconduct of that
person.
(2) In case of disobedience to the subpoena, in compelling the
production of documents, the secretary may invoke the aid of: (A)
The circuit court with jurisdiction over the served party, if the
person served is a resident; or (B) the circuit court of the county
in which the local child protective services office conducting the
investigation is located, if the person served is a nonresident.
(3) A circuit court shall not enforce an administrative
subpoena unless it finds that: (A) The investigation is one the
division of child protective services is authorized to make and is
being conducted pursuant to a legitimate purpose; (B) the inquiry
is relevant to that purpose; (C) the inquiry is not too broad or
indefinite; (D) the information sought is not already in the
possession of the division of child protective services; and (E)
any administrative steps required by law have been followed.
(4) If circumstances arise where the secretary, or his or her designee, determines it necessary to compel an individual to
provide information regarding the location of a child who is the
subject of an allegation of abuse or neglect, the secretary, or his
or her designee, may seek a subpoena from the circuit court with
jurisdiction over the individual from whom the information is
sought.
NOTE: The purpose of this bill is to provide personal immunity
from civil liability for adult protective services workers and
child protective service workers for acts, errors or omissions that
occurred during the course of their official duties.
Strike-throughs indicate language that wold be stricken from
present law, and underscoring indicates new language that would be
added.
This bill was recommended for passage during the 2008 Regular
Session of the Legislature by Select Committee A on Children,
Juveniles and Other Matters.