West Virginia Code
As used in this article:
“Applicant” means an individual who is being considered for employment or engagement with the department, a covered provider or covered contractor.
“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.
“Bureau” means a division within the Department of Health and Human Resources.
“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.
“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;
(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; and
(xi) Excludes medical foster home approved and annually reviewed by the United States Department of Veterans Affairs pursuant to 38 CFR §17.73.
“Department” means the Department of Health and Human Resources.
“Department employee” means any prospective or current part-time employee, full-time employee, temporary employee, independent contractor, or volunteer of the department.
“Direct access” means physical contact with a resident, member, beneficiary, or client, or access to their property, personally identifiable information, protected health information, or financial information.
“Direct access personnel” means an individual who has direct access by virtue of ownership, employment, engagement or agreement with the department, 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.
“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.
“Negative finding” means a finding in the prescreening that excludes an applicant from direct access personnel positions.
“Notice of ineligibility” means a notice pursuant to §16-49-3 of this code that the secretary’s review of the applicant’s criminal history record information reveals a disqualifying offense.
“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.
“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.
“Secretary” means the Secretary of the West Virginia Department of Health and Human Resources, or his or her designee.
“State Police” means the West Virginia State Police Criminal Identification Bureau.
(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 the department, 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 the department, covered providers, and covered contractors.
(c) The program shall include:
(1) A centralized Internet-based system of registries to allow the department, 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 department, 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.
(a) Except as otherwise permitted in this article, the department, 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 the department, covered provider, or covered contractor.
(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 bureau, covered provider, or covered contractor that the individual may be engaged.
(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 bureau, 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 department, 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 §16-49-6 of this code, the employer shall terminate the provisional employment upon receipt of the notice.
(a) 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 30 days after the date of the notice required by §16-49-3 or §16-49-4 of this code.
(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 bureau, covered provider, or covered contractor a written decision within 60 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.
(a) The department, covered provider, or covered contractor may permit an applicant to work on a provisional basis for not more than 60 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 department, 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. The department, 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.
(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 bureau, covered provider, or covered contractor inquiries.
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 the department, 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.
(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.