Senate Bill No. 429
(By Senators Macnaughtan, Bowman, Wiedebusch, Walker and
Sharpe)
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[Introduced February 17, 1995; referred to the Committee
on Health and Human Resources; and then to the Committee
on Finance.]
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A BILL to amend chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article five-m, relating
to establishing a home care abuse registry.
Be it enacted by the Legislature of West Virginia:
That chapter sixteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article five-m, to read
as follows:
ARTICLE 5M. HOME CARE ABUSE REGISTRY.
§16-5M-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) "Home care abuse registry" means the registry created by
this article which shall contain the names of those individuals
who have been determined to have neglected, abused or
misappropriated the property of a recipient of home care
services.
(b) "Department" means the West Virginia department of
health and human resources.
(c) "Office" means the office of health facility licensure
and certification.
(d) "Review board" means the board created by this article
which shall be vested with the authority to review reports of
neglect, abuse or misappropriation and/or destruction of a
patient's/client's property and to make determinations regarding
such reports.
(e) "Secretary" means the secretary for the West Virginia
department of health and human resources.
(f) "Abuse" definitions and examples include, but are not
limited to, the following:
(1) Physical abuse:
(A) Striking the patient/client with a part of the body or with an object: Nontherapeutic shoving, pushing, pulling or
twisting any part of the patient/client's body with fingers or
nails, burning or stick patient/client with an object;
(B) Physical contact intentionally or through carelessness
that results in or is likely to result in the death, physical
injury, pain or psychological harm to the patient/client.
(Examples of psychological harm include a noticeable level of
fear, anxiety, agitation or emotional distress in the patient/
client);
(C) Use of any restraints, involuntary seclusion or
isolation of client as a method of punishing a patient/client;
(D) Use of any restraints in an unreasonable manner, such as
tying the hands or legs together;
(E) Use of physical restraints other than approved by the
organization's human rights committee;
(F) Acts of retaliation, even in response to a physical
attack, constitute abuse.
(2) Verbal abuse:
(A) Statements made to a patient/client which result in
ridicule or humiliation of the patient/client. (Inappropriate
verbal reaction to a patient/client's attack would not necessarily be considered abuse unless the staff had a pattern of
responding this way;)
(B) Any use of oral, written or gestured language that
includes cursing, disparaging and derogatory term to
patients/clients or their families, or within their hearing
distance, to describe patients/clients, regardless of their age,
ability to comprehend or disability.
(3) Sexual abuse:
Include, but is not limited to, sexual harassment, sexual
coercion or sexual assault or allowing a home care patient/client
be sexually abused by another person, or inciting any of the
above.
(4) Psychological/Emotional Abuse:
(A) Humiliation, harassment, malicious teasing, threats of
punishment or deprivation;
(B) Not reasonably considering a patient's/client's wishes,
punatively restricting contact with family, friends or other
patients/clients, or ignoring patients'/clients' needs for verbal
and emotional contact;
(C) Violation of patients'/clients' right to confidentiality
by discussing patients'/ clients' condition, treatment or known personal affairs with anyone who does not have a right to the
information.
(5) Neglect.
(A) Failure to provide adequate nutrition and fluids in
accordance with the patient's/client's plan of care unless
specified through advanced directives;
(B) Failure to take precautionary measures, such as the use
of protective devices, as ordered by physician, the federal
office of safety and health administration, to protect the health
and safety of the patient/client;
(C) Intentional lack of attention to physical needs
including, but not limited to, toileting and bathing for the
patient as directed by the patient's plan of care;
(D) Failure to provide services in accordance with the
patient's/client's plan of care that results in harm, such as not
changing an incontinent patient/client or leaving them in a
soiled bed;
(E) Failure or refusal to provide a service in accordance
with the patient's/client's plan of care for the purpose of
punishing a patient/client;
(F) Failure to notify a responsible person in the event of a significant change in the patient's/client's physical, mental
or emotional condition that a prudent person would recognize;
(G) Failure to notify a responsible person in the event of
an incident involving the patient/client such as failure to
report a fall or conflict between patients/clients that result in
injury or possible injury;
(H) Failure to report observed or suspected abuse, neglect,
or intentional damage or misappropriation of patient's/client's
property.
(6) Misappropriation of patient's/client's property:
(A) Theft or attempted theft of a patient's/client's money
or personal property;
(B) Theft of patient's/client's medication;
(C) Inappropriate use of a patient's/client's funds or
property.
(g) "Home care agency" means a Class I or Class II home care
agency.
(h) "Hospice" means a coordinated program of home and
inpatient care provided directly or through an agreement under
the direction of an identifiable hospice administration which
provides palliative and supportive medical and other health services to terminally ill individuals and their families.
Hospice utilizes a medically directed interdisciplinary team. A
hospice program of care provides care to meet the physical,
psychological, social, spiritual and other special needs which
are experienced during the final stages of illness and during
dying and bereavement.
(i) "Class I home care agency" means an organization or
part thereof, staffed and equipped to provide private duty home
care or skilled nursing and at least one of the following
services: Physical therapy, occupational therapy, speech
pathology, medical, social or home health aide services intended
for the aged, disabled, ill or infirm on a part-time or
intermittent basis in their places of residence. This is also
inclusive of services provided by licensed hospices.
(j) "Class II home care agency" means any organization or
part thereof exclusive of Class I home care agencies and hospice
agencies, which supplies, arranges or refers personnel to provide
home care services for which that organization receives a fee,
consideration or compensation of any kind. The term includes,
but is not limited to: (1) Homemaker/home care aide providers;
(2) companion care providers; (3) registry services; (4) intravenous therapy providers; (5) in-home dialysis providers;
(6) durable medical equipment providers who offer an ongoing
complementary or billable service in conjunction with providing
the equipment; and (7) government departments and/or contracted
agencies such as, but not limited to, area agencies on aging,
senior centers, mental health centers, case management agencies
which provide direct home care or habilitative/rehabilitative
services. The term does not include: (1) Hospice providers, who
are already licensed in West Virginia and included as a Class I
home care agency; (2) volunteer providers or individuals who
provide a home care service without a contract or other business
relationship with a Class I or Class II home care agency; or (3)
services which are provided under a written contract with a
licensed home care agency.
§16-5M-2. Home care provider abuse registry.
(a) There is hereby established within the office of health
facility licensure and certification of the division of health,
department of health and human resources, an abuse registry to
contain the names and other pertinent information, of persons who
have been found to have committed acts of abuse, neglect or
misappropriation and/or destruction of patient/client property. Types of abuse shall include, but not be limited to, physical,
psychological, emotional, sexual and/or verbal. Examples of
abuse, neglect or misappropriation and/or destruction of a
patient's/client's property may be defined by the department in
accordance with its authority to promulgate rules, in addition to
definitions listed above.
(b) The department of health and human resources is hereby
authorized to promulgate rules which shall effectuate the
provisions of this article.
(c) Any individual employed by a home care agency with
authority to provide home care services in West Virginia, shall
be subject to this article.
§16-5M-3. Reporting.
(a) Any employee of a home care agency who has reasonable
cause to believe that a patient/client has been abused,
mistreated or neglected or whose property has been intentionally
damaged or misappropriated shall immediately report such incident
to the home care abuse registry.
(b) Any person may make a report if they have reason to
believe that a recipient of services of the agency has been
abused, neglected or their property misappropriated or intentionally damaged.
(c) No person making any oral or written report shall be
liable in any civil or criminal action by reason of such report
where the report was made in good faith or under the reasonable
belief that the abuse, neglect or misappropriation and/or
destruction of property has taken place.
(d) No agency shall discharge or in any manner discriminate
or retaliate against any person, by any means, who in good faith
make or causes to be made a report, or who testifies or who is
about to testify in any proceeding concerning abuse, neglect or
misappropriation and/or destruction of property of a
patient/client of said agency.
(e) The provisions in subsections (c) and (d) of this
section shall not apply to any person who has been found by the
review board to engage in the abuse, neglect or misappropriation
and/or destruction of property of a recipient. Nor shall it
apply to any person who has been found to knowingly and willfully
make a false allegation.
(f) To the extent permissible by state law, the identity of
the reporting individual will be treated as confidential
information.
(g) Every report filed with the office shall be made on
forms prescribed by the department and shall contain such
information requested and deemed necessary by the department.
§16-5M-4. Investigations.
(a) Each allegation of abuse, misappropriation and/or
destruction of property, or neglect shall be investigated by the
office.
(b) Upon a determination by the office that any report
submitted to it is not substantiated, the report shall be kept
for two years. A letter will be sent to the person informing
them that the report will be maintained for two years and may be
brought back into subsequent investigation if future reports of
abuse are received. If no further reports of abuse are received,
the report shall be expunged from the records of the office and
from the individual's file.
(c) The investigation may include any or all of the
following elements:
(1) A visit to the agency or home involved;
(2) A private interview with the patient/client or guardian
in question, if possible;
(3) Observation of the patient/client within the service environment, if possible;
(4) An examination of the patient/client medical and other
records, as well as, any other evidence which may be relevant to
the issue involved;
(5) Assessment of patient's/client's physical and mental
functional level;
(6) An examination of any documents prepared by the agency
which relate to the incident or the agency's investigation of
that incident;
(7) An evaluation of the nature, extent and cause or causes
of the injury or harm suffered by the patient/client in question;
(8) Interviews with any potential witnesses or family member
or care giver who may possess information relevant to the issues
involved and who are reasonably available for such an interview;
including any outside agencies that delivered medical or home
care services;
(9) An attempt to determine the identity of the person or
persons allegedly responsible for the alleged abuse, neglect or
misappropriation and/or destruction of property;
(10) An interview with the person or persons allegedly
responsible for the incident whenever their identity can be determined, if reasonably possible;
(11) An evaluation of the environment within the agency or
home and risks of physical or emotional injury or harm to other
patients/clients.
§16-5M-5. Determination.
(a) At the conclusion of the investigation, the review board
created in accordance with this article will make a final
determination of whether or not sufficient credible evidence
exists to sustain the allegations. If such evidence exists, the
individual under investigation shall be advised of the
allegations and shall be informed of their right to a hearing.
He or she shall have the right to review the record or file of
the allegations and may correct any inaccuracies or submit
additional information. The individual shall be informed by the
office of his or her right to be represented at the hearing. If
after full disclosure of the penalties and/or consequences that
may be asserted, the individual waives his or her right to a
hearing, or chooses not to contest the matter, the individual's
name shall forthwith be permanently placed on the registry.
(b) The office shall notify the individual by certified mail
at the individual's last known address. If certification of delivery is not satisfied, the office shall take all reasonable
actions to attempt to notify the individual of the allegations
made against him or her.
(c) The individual has thirty calendar days from the date of
receipt or notice to respond to the allegations. If reply is not
made within thirty days, the matter shall be considered
uncontested and within ten days the individual shall be notified
of their permanent inclusion on the abuse registry.
(d) If the right to a hearing has been waived, such waiver
must be entered on the registry and reported to the individual
within ten calendar days.
§16-5M-6. Hearing.
(a) If the individual files an application for a hearing, it
shall be held within forty-five days from receipt of the
application.
(b) Within twenty days from receipt of the individual's
application for a hearing, the office shall notify the individual
of time, place and date of hearing. The hearing shall be held at
a place and time that is reasonable for the individual and
witnesses to attend.
(c) The hearing will be conducted by a hearing examiner appointed by the secretary.
(d) The individual shall be provided the opportunity to:
(1) Present relevant written or oral evidence;
(2) Present witnesses on his or her behalf;
(3) Have an attorney or other representative present who can
provide evidence or cross examine witnesses.
(e) The hearing examiner shall make a recommendation to the
secretary or his or her designee within thirty days of the
conclusion of the hearing. The secretary or his or her designee
shall communicate such decision to the office within ten working
days after receipt of the hearing examiner's recommendation. If
the recommendation is in favor of the individual, the case shall
be closed and the individual so notified. If the decision
affirms the allegations which are the subject of the
investigation and hearing, the individual's name shall be placed
on the registry within ten working days.
(f) The individual may appeal the findings of the hearing
examiner by filing a civil complaint in the circuit court in the
county in which the individual resides or in the circuit court
for Kanawha County.
§16-5M-7. Criminal Penalties.
(a) Any person subject to subsection (a), section three of
this article, who witnesses abuse, neglect or misappropriation
and/or destruction of patient's/client's property and fails to
make a report shall be guilty of a misdemeanor, and, shall be
subject to a fine up to one hundred dollars and/or imprisoned for
up to ten days.
(b) Any person having actual care, custody or control of an
incapacitated patient/client of behavioral health services who:
(1) Abuses or neglects such patient/client;
(2) Knowingly permits another person to abuse or neglect a
patient/client shall be subject to the penalties outlined in WVC
9-6-15.
§16-5M-8. Home care agencies responsibilities.
(a) All home care agencies authorized to operate in West
Virginia shall adopt and implement written policies and
procedures for the following:
(1) Notification to employees of the agency that they are
subject to an abuse registry and training in adherence to the
legislation;
(2) Training for staff in use of nonviolent intervention
strategies for dealing with home care patient's/client's inappropriate behavior. (Inappropriate behavior defined as
actions that are disruptive to staff and patients/clients;
operation and physical endangerment to self and/or others);
(3) Procedures for contacting the abuse registry to verify
home care job applicants selected for employment who are not
listed on the abuse registry.
(b) These policies and procedures must ensure that all
incidents of suspected abuse, neglect or misappropriation of
property are reported to the home care abuse registry of the
office of health facility licensure and certification and the
local adult protective services or child protective services
office law-enforcement agency as required.
(c) All home care agencies shall adopt personnel policies
which shall include actions to be taken in cases where employees
are suspected of adult abuse or neglect. There shall be no less
than suspension until investigations are completed.
NOTE: The purpose of this bill is to establish a Home Care
Abuse Registry.
Article five-m, chapter sixteen is new; therefore,
strike-throughs and underscoring have been omitted.