ENGROSSED
H. B. 2903
(By Delegates DeLong, Douglas, Cann and Swartzmiller)
[Introduced March 19, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, two, three and eight,
article two-c, chapter fifteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, all relating
to including on a central registry those persons who have
abused, neglected or committed other crimes against persons
who are adults receiving behavioral health services.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three and eight, article two-c,
chapter fifteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to
read as follows:
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 or an adult receiving
behavioral health services.
(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.
(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.
(d) "Adult receiving behavioral health services" means a
person over the age of eighteen years who is receiving any behavioral health service from a licensed behavioral health
provider or any behavioral health provider whose services are paid
for, in whole or in part, by medicaid or medicare.
(d) (e) "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) (f) "Residential care facility" means any facility where
a child or an incapacitated adult or adult receiving behavioral
health services 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) (g) "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 or an adult receiving behavioral health
services in a residential care facility or a child or an
incapacitated adult or adult receiving behavioral health services
who is a recipient of home care services.
(g) (h) "Home care" or "home care services" means services
provided to children or incapacitated adult adults or an adult
receiving behavioral health services in the home through 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) (i) "Requester" means any residential care facility, any
state licensed day care center, or any provider of home care
services or provider of behavioral health 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 or an adult receiving behavioral health
services for compensation; or (2) certifying that an allegation of
abuse, neglect or misappropriation of property has been made
against the individual.
§15-2C-2. Central 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 involving child abuse
or neglect, abuse or neglect of an incapacitated adult
or an adult
receiving behavioral health services and misappropriation of
property by individuals specified in subsection (b) of this section
and information relating to individuals required to be registered
as a sex offender.
(b) The central abuse registry shall contain, at a minimum,
information relating to: Convictions of a misdemeanor or a felony
involving 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
in
connection with providing behavioral health services, or in
connection with the provision of home care services; 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
or an adult receiving behavioral
health services; and information relating to all individuals
required to register with the West Virginia state police as sex
offenders pursuant to the provisions of article twelve, chapter
fifteen of this code. The central abuse registry shall contain the
following information:
(1) The individual's full name;
(2) Sufficient information to identify the individual,
including date of birth, social security number and fingerprints if
available;
(3) Identification of the criminal offense constituting abuse,
neglect or misappropriation of property of a child or an
incapacitated adult
or an adult receiving behavioral health
services;
(4) For cases involving abuse, neglect or misappropriation of property of a child or an incapacitated adult
or an adult receiving
behavioral health services in a residential care facility or a day
care center, or of a child or an incapacitated adult
or an adult
receiving behavioral health services receiving home care services,
sufficient information to identify the location where the
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 conviction,
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
or an adult receiving
behavioral health services, 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
or adult receiving behavioral health services,
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
or an
adult receiving behavioral health services, 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
or an adult receiving
behavioral health services in a residential care facility or a
child or an incapacitated adult
or an adult receiving behavioral
health services 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 a 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
receiving
behavioral health services 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 and release 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-8. Service provider responsibilities.
All residential care facilities, day care centers,
providers
to adults with behavioral health needs 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
or
to adults receiving behavioral health services, who is convicted of
a misdemeanor or felony offense constituting abuse, neglect or
misappropriation of property of a child or an incapacitated adult
or an adult receiving behavioral health services, 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) 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
or adult receiving behavioral health services.
(3) 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
or to
adults receiving behavioral health services.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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