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Chapter 16     Entire Code

1 - STATE PUBLIC HEALTH SYSTEM

1A - UNIFORM CREDENTIALING FOR HEAL

1B - SKILLED NURSING FACILITIES FOR

1C - HEALTH CARE PROVIDER TRANSPARE

2 - LOCAL BOARDS OF HEALTH

2A - ALTERNATIVE METHOD OF ORGANIZI

2B - FAMILY PLANNING AND CHILD SPAC

2C - HOME HEALTH SERVICES

2D - CERTIFICATE OF NEED

2E - BIRTHING CENTERS

2F - PARENTAL NOTIFICATION OF ABORT

2G - SPECIAL SUPPLEMENTARY FOOD PRO

2H - PRIMARY CARE SUPPORT PROGRAM

2I - WOMEN'S RIGHT TO KNOW ACT

2J - PREVENTIVE CARE PILOT PROGRAM

2K - PROGRAMS OF ALL-INCLUSIVE CARE

2L - PROVIDER SPONSORED NETWORKS

2M - THE PAIN-CAPABLE UNBORN CHILD

2N - NEONATAL ABSTINENCE CENTERS

2O - UNBORN CHILD PROTECTION FROM D

3 - PREVENTION AND CONTROL OF COMMU

3A - REPOSITORY OF INFORMATION ON M

3B - PERTUSSIS

3C - AIDS-RELATED MEDICAL TESTING A

3D - TUBERCULOSIS TESTING, CONTROL,

4 - SEXUALLY TRANSMITTED DISEASES

4A - PRENATAL EXAMINATION

4B - AUTOPSIES ON BODIES OF DECEASE

4C - EMERGENCY MEDICAL SERVICES ACT

4D - AUTOMATED EXTERNAL DEFIBRILLAT

4E - UNIFORM MATERNAL SCREENING ACT

4F - EXPEDITED PARTNER THERAPY

5 - VITAL STATISTICS

5A - CANCER CONTROL

5B - HOSPITALS AND SIMILAR INSTITUT

5C - NURSING HOMES

5D - ASSISTED LIVING RESIDENCES

5E - REGISTRATION AND INSPECTION OF

5F - HEALTH CARE FINANCIAL DISCLOSU

5G - OPEN HOSPITAL PROCEEDINGS

5H - CHRONIC PAIN CLINIC LICENSING

5I - HOSPICE LICENSURE ACT

5J - CLINICAL LABORATORIES QUALITY

5K - EARLY INTERVENTION SERVICES FO

5L - LONG-TERM CARE OMBUDSMAN PROGR

5M - OSTEOPOROSIS PREVENTION EDUCAT

5N - RESIDENTIAL CARE COMMUNITIES

5O - MEDICATION ADMINISTRATION BY U

5P - SENIOR SERVICES

5Q - THE JAMES "TIGER" MO

5R - THE ALZHEIMER'S SPECIAL CARE S

5S - OLDER WEST VIRGINIANS ACT

5T - OFFICE OF DRUG CONTROL POLICY

5U - ARTHRITIS PREVENTION EDUCATION

5V - EMERGENCY MEDICAL SERVICES RET

5W - WEST VIRGINIA OFFICIAL PRESCRI

5X - CAREGIVER ADVISE, RECORD AND E

5Y - MEDICATION-ASSISTED TREATMENT

5Z - COALITION FOR DIABETES MANAGEM

6 - HOTELS AND RESTAURANTS

7 - PURE FOOD AND DRUGS

8 - ELECTROLOGISTS

8A - NARCOTIC DRUGS

8B - DANGEROUS DRUGS ACT

9 - OFFENSES GENERALLY

9A - TOBACCO USAGE RESTRICTIONS

9B - IMPLEMENTING TOBACCO MASTER SE

9C - STATE TOBACCO GROWERS' SETTLEM

9D - ENFORCEMENT OF STATUTES IMPLEM

9E - DELIVERY SALES OF TOBACCO

9F - COUNTERFEIT CIGARETTES

10 - UNIFORM DETERMINATION OF DEAT

11 - SEXUAL STERILIZATION

12 - SANITARY DISTRICTS FOR SEWAGE

13 - SEWAGE WORKS AND STORMWATER W

13A - PUBLIC SERVICE DISTRICTS

13B - COMMUNITY IMPROVEMENT ACT

13C - DRINKING WATER TREATMENT REV

13D - REGIONAL WATER AND WASTEWATE

13E - COMMUNITY ENHANCEMENT ACT

14 - BARBERS AND COSMETOLOGISTS

15 - STATE HOUSING LAW

16 - HOUSING COOPERATION LAW

17 - NATIONAL DEFENSE HOUSING

18 - SLUM CLEARANCE

19 - ANATOMICAL GIFT ACT

20 - AIR POLLUTION CONTROL

21 - BLOOD DONATIONS

22 - DETECTION AND CONTROL OF PHEN

22A - TESTING OF NEWBORN INFANTS F

22B - BIRTH SCORE PROGRAM

23 - TRANSFUSION OF BLOOD; TRANSPL

24 - STATE HEMOPHILIA PROGRAM

25 - DETECTION OF TUBERCULOSIS, HI

26 - WEST VIRGINIA SOLID WASTE MAN

27 - STORAGE AND DISPOSAL OF RADIO

27A - BAN ON CONSTRUCTION OF NUCLE

28 - ASSISTANCE TO KOREAN AND VIET

29 - HEALTH CARE RECORDS

29A - WEST VIRGINIA HOSPITAL FINAN

29B - HEALTH CARE AUTHORITY

29C - INDIGENT CARE

29D - STATE HEALTH CARE

29E - LEGISLATIVE OVERSIGHT COMMIS

29F - UNINSURED AND UNDERINSURED P

29G - WEST VIRGINIA HEALTH INFORMA

29H - INTERAGENCY HEALTH COUNCIL

29I - WEST VIRGINIA HEALTH CARE AU

30 - WEST VIRGINIA HEALTH CARE DEC

30A - MEDICAL POWER OF ATTORNEY

30B - HEALTH CARE SURROGATE ACT

30C - DO NOT RESUSCITATE ACT

31 - COMMUNITY RIGHT TO KNOW

32 - ASBESTOS ABATEMENT

33 - BREAST AND CERVICAL CANCER PR

34 - LICENSURE OF RADON MITIGATORS

35 - LEAD ABATEMENT

36 - NEEDLESTICK INJURY PREVENTION

37 - BODY PIERCING STUDIO BUSINESS

38 - TATTOO STUDIO BUSINESS

39 - PATIENT SAFETY ACT

40 - STATEWIDE BIRTH DEFECTS INFOR

41 - ORAL HEALTH IMPROVEMENT ACT

42 - COMPREHENSIVE BEHAVIORAL HEAL

43 - ENGINE COOLANT AND ANTIFREEZE

44 - THE PULSE OXIMETRY NEWBORN TE

45 - TANNING FACILITIES

46 - ACCESS TO OPIOID ANTAGONISTS

47 - ALCOHOL AND DRUG OVERDOSE PRE

48 - WEST VIRGINIA ABLE ACT

49 - WEST VIRGINIA CLEARANCE FOR A
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50 - EPINEPHRINE AUTO-INJECTOR AVA

51 - RIGHT TO TRY ACT

52 - COALITION FOR RESPONSIBLE PAI

53 - ESTABLISHING ADDITIONAL SUBST

CHAPTER 16. PUBLIC HEALTH.

ARTICLE 49. WEST VIRGINIA CLEARANCE FOR ACCESS: REGISTRY AND EMPLOYMENT SCREENING ACT.

§16-49-1. Definitions.

As used in this article:

(1) "Applicant" means an individual who is being considered for employment or engagement with a covered provider or covered contractor.

(2) "Background check" means a prescreening of registries specified by the secretary by rule and a fingerprint-based search of state and federal criminal history record information.

(3) "Covered contractor" means an individual or entity, including their employees and subcontractors, that contracts with a covered provider to perform services that include any direct access services.

(4) "Covered provider" means the following facilities or providers:

(i) A skilled nursing facility;

(ii) A nursing facility;

(iii) A home health agency;

(iv) A provider of hospice care;

(v) A long-term care hospital;

(vi) A provider of personal care services;

(vii) A provider of adult day care;

(viii) A residential care provider that arranges for, or directly provides, long-term care services, including an assisted living facility;

(ix) An intermediate care facility for individuals with intellectual disabilities; and

(x) Any other facility or provider required to participate in the West Virginia Clearance for Access: Registry and Employment Screening program as determined by the secretary by legislative rule.

(5) "Department" means the Department of Health and Human Resources.

(6) "Direct access" means physical contact with a resident, member, beneficiary or client of a covered provider, or access to their property, personally identifiable information, protected health information or financial information.

(7) "Direct access personnel" means an individual who has direct access by virtue of ownership, employment, engagement or agreement with a covered provider or covered contractor. Direct access personnel does not include volunteers or students performing irregular or supervised functions or contractors performing repairs, deliveries, installations or similar services for the covered provider. The secretary shall determine by legislative rule whether the position in question involves direct access.

(8) "Disqualifying offense" means:

(A) A conviction of any crime described in 42 U. S. C. §1320a-7(a); or

(B) A conviction of any other crime specified by the secretary in rule, which shall include crimes against care-dependent or vulnerable individuals, crimes of violence, sexual offenses and financial crimes.

(9) "Negative finding" means a finding in the prescreening that excludes an applicant from direct access personnel positions.

(10) "Notice of ineligibility" means a notice pursuant to section three of this article that the secretary's review of the applicant's criminal history record information reveals a disqualifying offense.

(11) "Prescreening" means a mandatory search of databases and registries specified by the secretary in legislative rule for exclusions and licensure status prior to the submission of fingerprints for a criminal history record information check.

(12) "Rap back" means the notification to the department when an individual who has undergone a fingerprint-based, state or federal criminal history record information check has a subsequent state or federal criminal history event.

(13) "Secretary" means the Secretary of the West Virginia Department of Health and Human Resources, or his or her designee.

(14) "State Police" means the West Virginia State Police Criminal Identification Bureau.

§16-49-2. Background check program for covered providers and covered contractors.

(a) The secretary shall create and implement a background check program to facilitate the processing and analysis of the criminal history and background of applicants to covered providers and covered contractors with direct access. This program shall be called the West Virginia Clearance for Access: Registry and Employment Screening.

(b) The purpose of the program is to protect West Virginia's vulnerable populations by requiring registry and criminal background checks for all direct access personnel of covered providers and covered contractors.

(c) The program shall include:

(1) A centralized Internet-based system of registries to allow covered providers and covered contractors to perform a mandatory prescreening of applicants;

(2) Fingerprint-based state and federal criminal background checks on all direct access personnel; and

(3) An integrated Rap Back Program with the State Police to allow retention of fingerprints and updates of state and federal criminal information on all direct access personnel until such time as the individual is no longer employed or engaged by the covered provider or covered contractor.

(d) The department shall notify applicants subject to a criminal history record check that their fingerprints shall be retained by the State Police Criminal Identification Bureau and the Federal Bureau of Investigation.

§16-49-3. Prescreening and criminal background checks.

(a) Except as otherwise permitted in this article, the covered provider or covered contractor may not employ or engage an applicant prior to completing the background check process.

(b) If the applicant has a negative finding on any required prescreening registry or database, the employer shall notify the individual of such finding.

(c) If the applicant has a negative finding on any required prescreening registry or database, that individual may not immediately be engaged by a covered provider or covered contractor. However, that individual or the employer may apply for a variance pursuant to section five of this article.

(d) If the applicant does not have a negative finding in the prescreening process, the applicant shall submit to fingerprinting for a state and federal criminal history record information check.

(e) The State Police shall notify the secretary of the results of the criminal history record information check.

(f) If the secretary's review of the criminal history record information reveals that the applicant does not have a disqualifying offense, the secretary shall provide written notice to the covered provider or covered contractor that the individual may be engaged.

§16-49-4. Notice of ineligibility; prohibited participation as direct access personnel.

(a) If the secretary's review of the applicant's criminal history record information reveals a disqualifying offense, the secretary shall provide written notice to the covered provider or covered contractor advising that the applicant is ineligible for work. The secretary may not disseminate the criminal history record information.

(b) The covered provider or covered contractor may not engage an applicant with a disqualifying offense as direct access personnel. If the applicant has been provisionally employed pursuant to section six of this article, the employer shall terminate the provisional employment upon receipt of the notice.

§16-49-5. Variance; appeals.

(a) If the prescreening process reveals a negative finding, or if the secretary issues a notice of ineligibility, the applicant, or the employer on the applicant's behalf, may file a written request for a variance with the secretary not later than thirty days after the date of the notice required by sections three or four of this article.

(b) The secretary may grant a variance if:

(1) Mitigating circumstances surrounding the negative finding or disqualifying offense is provided; and

(2) The secretary finds that the individual will not pose a danger or threat to residents, members and their property.

(c) The secretary shall establish in legislative rule factors that qualify as mitigating circumstances.

(d) The secretary shall mail to the applicant and the covered provider or covered contractor a written decision within ninety days of receipt of the request indicating whether a variance has been granted or denied.

(e) If an applicant believes that their criminal history record information within this state is incorrect or incomplete, they may challenge the accuracy of such information by writing to the State Police for a personal review. However, if the discrepancies are at the charge or final disposition level, the applicant must address this with the court or arresting agency that submitted the record to the State Police.

(f) If an applicant believes that their criminal history record information outside this state is incorrect or incomplete, they may appeal the accuracy of such information by contacting the Federal Bureau of Investigation for instructions.

(g) If any changes, corrections, or updates are made in the criminal history record information, the State Police shall notify the secretary that the applicant has appealed the accuracy of the criminal history records and provide the secretary with the updated results of the criminal history record information check, which the secretary shall review de novo in accordance with the provisions of this article.

§16-49-6. Provisional employment pending completion of background check.

(a) A covered provider or covered contractor may permit an applicant to work on a provisional basis for not more than sixty days pending notification from the secretary regarding the results of the criminal background check if:

(1) The applicant is subject to direct on-site supervision, as specified in rule by the secretary, during the course of the provisional period; and

(2) In a signed statement the applicant:

(A) Affirms that he or she has not committed a disqualifying offense;

(B) Acknowledges that a disqualifying offense reported in the required criminal history record information check shall constitute good cause for termination; and

(C) Acknowledges that the covered provider or covered contractor may terminate the individual if a disqualifying offense is reported in the background check.

(b) Provisional employees who have requested a variance shall not be required to sign such a statement. A covered provider or covered contractor may continue to employ an applicant if an applicant applies for a variance of his or her fitness determination until the variance is resolved.

§16-49-7. Clearance for subsequent employment.

(a) An applicant is not required to submit to fingerprinting and a criminal background check if:

(1) The individual previously submitted to fingerprinting and a full criminal background check as required by this article;

(2) The prior criminal background check confirmed that the individual did not have a disqualifying offense or the individual received prior approval from the secretary to work for or with the same type of covered provider or covered contractor; and

(3) The Rap Back Program has not identified any criminal activity that constitutes a disqualifying offense.

(b) The secretary shall provide notice of prior clearance for direct access status upon request by a subsequent covered provider or covered contractor.

§16-49-8. Fees.

In order to enforce the requirements and intent of this article, the following fees may be charged:

(1) The State Police may assess a fee to applicants, covered providers or covered contractors for conducting the criminal background check and for collecting and retaining fingerprints for Rap Back as authorized under this article.

(2) The secretary may assess a fee to applicants, covered providers or covered contractors for the maintenance of the Internet-based system required by this article. The assessment shall be deposited into a special revenue account within the State Treasurer's office to be known as the DHHR Criminal Background Administration Account. Expenditures from the account shall be made by the secretary for purposes set forth in this article and are authorized from collections. The account shall be administered by the secretary and may not be deemed a part of the general revenue of the state.

§16-49-9. Rules; penalties; confidentiality; immunity.

(a) The secretary shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to implement the provisions of this article. The secretary may promulgate emergency rules, if justified, pursuant to section fifteen, article three, chapter twenty-nine-a of this code as may be required.

(b) Failure of a covered provider or covered contractor to ensure proper completion of the background check process for each individual employed as direct access personnel may result in the imposition of monetary civil penalties. In addition, engaging individuals knowing that they are ineligible to work may subject the employer to monetary civil penalties.

(c) The secretary shall treat and maintain any criminal background search information obtained under this article as confidential. The secretary shall limit the use of records solely to the purposes authorized in this article. The criminal history record information in the custody of the secretary is not subject to subpoena, other than one issued in a criminal action or investigation; is confidential by law and privileged; and is not subject to discovery or admissible in evidence in any private civil action.

(d) The secretary, the department and its employees are immune from liability, civil or criminal, that might otherwise be incurred or imposed for good faith conduct in determining eligibility or granting variances permitted by this article.

Note: WV Code updated with legislation passed through the 2017 Regular Session
The West Virginia Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.


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