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Chapter 16     Entire Code


ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.

ARTICLE 1A. UNIFORM CREDENTIALING FOR HEALTH CARE PRACTITIONERS.

ARTICLE 1B. SKILLED NURSING FACILITIES FOR VETERANS OF THE UNITED STATES ARMED FORCES.

ARTICLE 1C. HEALTH CARE PROVIDER TRANSPARENCY ACT.

ARTICLE 2. LOCAL BOARDS OF HEALTH.

ARTICLE 2A. ALTERNATIVE METHOD OF ORGANIZING LOCAL HEALTH AGENCIES.

ARTICLE 2B. FAMILY PLANNING AND CHILD SPACING.

ARTICLE 2C. HOME HEALTH SERVICES.

ARTICLE 2D. CERTIFICATE OF NEED.

ARTICLE 2E. BIRTHING CENTERS.

ARTICLE 2F. PARENTAL NOTIFICATION OF ABORTIONS PERFORMED ON UNEMANCIPATED MINORS.

ARTICLE 2G. SPECIAL SUPPLEMENTARY FOOD PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC).

ARTICLE 2H. PRIMARY CARE SUPPORT PROGRAM.

ARTICLE 2I. WOMEN\'S RIGHT TO KNOW ACT.

ARTICLE 2J. PREVENTIVE CARE PILOT PROGRAM.

ARTICLE 2K. PROGRAMS OF ALL-INCLUSIVE CARE FOR THE ELDERLY, \"PACE\".

ARTICLE 2L. PROVIDER SPONSORED NETWORKS.

ARTICLE 2M. THE PAIN-CAPABLE UNBORN CHILD PROTECTION ACT.

ARTICLE 2N. NEONATAL ABSTINENCE CENTERS.

ARTICLE 2O. UNBORN CHILD PROTECTION FROM DISMEMBERMENT ABORTION ACT.

ARTICLE 3. PREVENTION AND CONTROL OF COMMUNICABLE AND OTHER INFECTIOUS DISEASES.

ARTICLE 3A. REPOSITORY OF INFORMATION ON MEDICAL TREATMENT FOR CERTAIN HAZARDOUS MATERIALS; REQUEST FOR INFORMATION; PENALTIES; ENFORCEMENT.

ARTICLE 3B. PERTUSSIS.

ARTICLE 3C. AIDS-RELATED MEDICAL TESTING AND RECORDS CONFIDENTIALITY ACT.

ARTICLE 3D. TUBERCULOSIS TESTING, CONTROL, TREATMENT AND COMMITMENT.

ARTICLE 4. SEXUALLY TRANSMITTED DISEASES.

ARTICLE 4A. PRENATAL EXAMINATION.

ARTICLE 4B. AUTOPSIES ON BODIES OF DECEASED PERSONS.

ARTICLE 4C. EMERGENCY MEDICAL SERVICES ACT.

ARTICLE 4D. AUTOMATED EXTERNAL DEFIBRILLATORS.

ARTICLE 4E. UNIFORM MATERNAL SCREENING ACT.

ARTICLE 4F. EXPEDITED PARTNER THERAPY.

ARTICLE 5. VITAL STATISTICS.

ARTICLE 5A. CANCER CONTROL.

ARTICLE 5B. HOSPITALS AND SIMILAR INSTITUTIONS.

ARTICLE 5C. NURSING HOMES.

ARTICLE 5D. ASSISTED LIVING RESIDENCES.

ARTICLE 5E. REGISTRATION AND INSPECTION OF SERVICE PROVIDERS IN LEGALLY UNLICENSED HEALTH CARE HOMES.

ARTICLE 5F. HEALTH CARE FINANCIAL DISCLOSURE.

ARTICLE 5G. OPEN HOSPITAL PROCEEDINGS.

ARTICLE 5H. CHRONIC PAIN CLINIC LICENSING ACT.

ARTICLE 5I. HOSPICE LICENSURE ACT.

ARTICLE 5J. CLINICAL LABORATORIES QUALITY ASSURANCE ACT.

ARTICLE 5K. EARLY INTERVENTION SERVICES FOR CHILDREN WITH DEVELOPMENTAL DELAYS.

ARTICLE 5L. LONG-TERM CARE OMBUDSMAN PROGRAM.

ARTICLE 5M. OSTEOPOROSIS PREVENTION EDUCATION ACT.

ARTICLE 5N. RESIDENTIAL CARE COMMUNITIES.

ARTICLE 5O. MEDICATION ADMINISTRATION BY UNLICENSED PERSONNEL.

ARTICLE 5P. SENIOR SERVICES.

ARTICLE 5Q. THE JAMES \"TIGER\" MORTON CATASTROPHIC ILLNESS FUND.

ARTICLE 5R. THE ALZHEIMER\'S SPECIAL CARE STANDARDS ACT.

ARTICLE 5S. OLDER WEST VIRGINIANS ACT.

ARTICLE 5T. OFFICE OF DRUG CONTROL POLICY.

ARTICLE 5U. ARTHRITIS PREVENTION EDUCATION ACT.

ARTICLE 5V. EMERGENCY MEDICAL SERVICES RETIREMENT SYSTEM ACT.

ARTICLE 5W. WEST VIRGINIA OFFICIAL PRESCRIPTION PROGRAM ACT.

ARTICLE 5X. CAREGIVER ADVISE, RECORD AND ENABLE ACT.

ARTICLE 5Y. MEDICATION-ASSISTED TREATMENT PROGRAM LICENSING ACT.

ARTICLE 5Z. COALITION FOR DIABETES MANAGEMENT.

ARTICLE 6. HOTELS AND RESTAURANTS.

ARTICLE 7. PURE FOOD AND DRUGS.

ARTICLE 8. ELECTROLOGISTS.

ARTICLE 8A. NARCOTIC DRUGS.

ARTICLE 8B. DANGEROUS DRUGS ACT.

ARTICLE 9. OFFENSES GENERALLY.

ARTICLE 9A. TOBACCO USAGE RESTRICTIONS.

ARTICLE 9B. IMPLEMENTING TOBACCO MASTER SETTLEMENT AGREEMENT.

ARTICLE 9C. STATE TOBACCO GROWERS\' SETTLEMENT BOARD.

ARTICLE 9D. ENFORCEMENT OF STATUTES IMPLEMENTING TOBACCO MASTER SETTLEMENT AGREEMENT.

ARTICLE 9E. DELIVERY SALES OF TOBACCO.

ARTICLE 9F. COUNTERFEIT CIGARETTES.

ARTICLE 10. UNIFORM DETERMINATION OF DEATH ACT.

ARTICLE 11. SEXUAL STERILIZATION.

ARTICLE 12. SANITARY DISTRICTS FOR SEWAGE DISPOSAL.

ARTICLE 13. SEWAGE WORKS AND STORMWATER WORKS.

ARTICLE 13A. PUBLIC SERVICE DISTRICTS.

ARTICLE 13B. COMMUNITY IMPROVEMENT ACT.

ARTICLE 13C. DRINKING WATER TREATMENT REVOLVING FUND ACT.

ARTICLE 13D. REGIONAL WATER AND WASTEWATER AUTHORITY ACT.

ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.

ARTICLE 14. BARBERS AND COSMETOLOGISTS.

ARTICLE 15. STATE HOUSING LAW.

ARTICLE 16. HOUSING COOPERATION LAW.

ARTICLE 17. NATIONAL DEFENSE HOUSING.

ARTICLE 18. SLUM CLEARANCE.

ARTICLE 19. ANATOMICAL GIFT ACT.

ARTICLE 20. AIR POLLUTION CONTROL.

ARTICLE 21. BLOOD DONATIONS.

ARTICLE 22. DETECTION AND CONTROL OF PHENYLKETONURIA, GALACTOSEMIA, HYPOTHYROIDISM, AND CERTAIN OTHER DISEASES IN NEWBORN CHILDREN.

ARTICLE 22A. TESTING OF NEWBORN INFANTS FOR HEARING IMPAIRMENTS.

ARTICLE 22B. BIRTH SCORE PROGRAM.

ARTICLE 23. TRANSFUSION OF BLOOD; TRANSPLANTING HUMAN ORGANS OR TISSUE.

ARTICLE 24. STATE HEMOPHILIA PROGRAM.

ARTICLE 25. DETECTION OF TUBERCULOSIS, HIGH BLOOD PRESSURE AND DIABETES.

ARTICLE 26. WEST VIRGINIA SOLID WASTE MANAGEMENT BOARD.

ARTICLE 27. STORAGE AND DISPOSAL OF RADIOACTIVE WASTE MATERIALS.

ARTICLE 27A. BAN ON CONSTRUCTION OF NUCLEAR POWER PLANTS.

ARTICLE 28. ASSISTANCE TO KOREAN AND VIETNAM VETERANS EXPOSED TO CERTAIN CHEMICAL DEFOLIANTS OR HERBICIDES OR OTHER CAUSATIVE AGENTS, INCLUDING AGENT ORANGE.

ARTICLE 29. HEALTH CARE RECORDS.

ARTICLE 29A. WEST VIRGINIA HOSPITAL FINANCE AUTHORITY ACT.

ARTICLE 29B. HEALTH CARE AUTHORITY.

ARTICLE 29C. INDIGENT CARE.

ARTICLE 29D. STATE HEALTH CARE.

ARTICLE 29E. LEGISLATIVE OVERSIGHT COMMISSION ON HEALTH AND HUMAN RESOURCES ACCOUNTABILITY.

ARTICLE 29F. UNINSURED AND UNDERINSURED PILOT PROGRAMS.

ARTICLE 29G. WEST VIRGINIA HEALTH INFORMATION NETWORK.

ARTICLE 29H. INTERAGENCY HEALTH COUNCIL.

ARTICLE 29I. WEST VIRGINIA HEALTH CARE AUTHORITY REVOLVING LOAN AND GRANT FUND.

ARTICLE 30. WEST VIRGINIA HEALTH CARE DECISIONS ACT.

ARTICLE 30A. MEDICAL POWER OF ATTORNEY.

ARTICLE 30B. HEALTH CARE SURROGATE ACT.

ARTICLE 30C. DO NOT RESUSCITATE ACT.

ARTICLE 31. COMMUNITY RIGHT TO KNOW.

ARTICLE 32. ASBESTOS ABATEMENT.

ARTICLE 33. BREAST AND CERVICAL CANCER PREVENTION AND CONTROL ACT.

ARTICLE 34. LICENSURE OF RADON MITIGATORS, TESTERS, CONTRACTORS AND LABORATORIES.

ARTICLE 35. LEAD ABATEMENT.

ARTICLE 36. NEEDLESTICK INJURY PREVENTION.

ARTICLE 37. BODY PIERCING STUDIO BUSINESS.

ARTICLE 38. TATTOO STUDIO BUSINESS.

ARTICLE 39. PATIENT SAFETY ACT.

ARTICLE 40. STATEWIDE BIRTH DEFECTS INFORMATION SYSTEM.

ARTICLE 41. ORAL HEALTH IMPROVEMENT ACT.

ARTICLE 42. COMPREHENSIVE BEHAVIORAL HEALTH COMMISSION.

ARTICLE 43. ENGINE COOLANT AND ANTIFREEZE.

ARTICLE 44. THE PULSE OXIMETRY NEWBORN TESTING ACT.

ARTICLE 45. TANNING FACILITIES.

ARTICLE 46. ACCESS TO OPIOID ANTAGONISTS ACT.

ARTICLE 47. ALCOHOL AND DRUG OVERDOSE PREVENTION AND CLEMENCY ACT.

ARTICLE 48. WEST VIRGINIA ABLE ACT.

ARTICLE 50. EPINEPHRINE AUTO-INJECTOR AVAILABILITY AND USE.

ARTICLE 51. RIGHT TO TRY ACT.

ARTICLE 52. COALITION FOR RESPONSIBLE PAIN MANAGEMENT.

ARTICLE 53. ESTABLISHING ADDITIONAL SUBSTANCE ABUSE TREATMENT FACILITIES.

ARTICLE 54. OPIOID REDUCTION ACT.

ARTICLE 54. STATE ADVISORY COALITION ON PALLIATIVE CARE.

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.

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