H. B. 2513
(By Delegates Leach, Kiss, Compton, Mezzatesta,
Smirl, Fragale and Varner)
[Introduced February 16, 1995 ; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend chapter twenty-seven of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new article, designated article
eighteen, relating to establishing a behavioral health
services abuse registry; definitions; reporting procedures
and requirements; investigations; initial determination;
hearing; final determination; appeal; criminal penalties;
and behavioral health service provider responsibilities.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article eighteen, to read as follows:
CHAPTER 27. INDIVIDUALS WITH BEHAVIORAL HEALTH DISORDERS.
ARTICLE 27. Behavioral health adult abuse registry.
§27-18-1. 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) "Behavioral health adult 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 or destroyed the property of a
recipient of behavioral health services.
(b) "Department" means the West Virginia Department of
Health and Human Resources.
(c) "Office" means the Office of Health Facility Licensure
and Certification, within the division of health, West Virginia
department of health and human resources.
(d) "Review board" means the board created by this article
which is authorized to review reports of abuse or neglect, of
misappropriation or destruction of a client's property and to
make determinations regarding such reports.
(e) "Secretary" means the Secretary for West Virginia
Department of Health and Human Resources.
(f) "Abuse" includes, but is not limited to the following:
(1)"Physical abuse" which includes, but is not limited to,
the following:
(A) Striking the client with a part of the body or with an
object;
(B) Non-therapeutic shoving, pushing, pulling or twisting
any part of the client's body;
(C) Burning or sticking client with an object.
(D) Any intentional physical contact with a client that
results in or is likely to result in death, physical injury, pain
or psychological harm to the client; as evidenced by increased
fear, anxiety, agitation or emotional distress in the client;
(E) Use of any physical restraints, involuntary seclusion or
isolation of client as a method of punishing, disciplining or
intimidating a client.
(F) Use of any physical restraints in an unreasonable
manner, such as tying the hands or legs together.
(G) Use of physical restraints other than those approved by the facility's human rights committee; and
(H) Physical acts of retaliation against a client,
notwithstanding any provocation by the client: Provided, That
accidental injury to a client as a result of justifiable
self-defense or defense of or prevention of injury to another may
not be construed as abuse of a client under this subsection.
(2) Verbal abuse.
(A) Statements made to a client or in a client's presence
with an intent to ridicule or humiliate him or her:
Provided,
That neither inappropriate verbal reaction to a client's
provocation nor nonmalicious teasing constitute verbal abuse
under this section, unless the individual in question has a
history of such inappropriate conduct and it was reasonably
foreseeable that such conduct would make the client feel degraded
or result in other emotional distress; and
(B) Any use of oral, written or gestured language that
includes cursing, or disparaging or derogatory terms, directed to
a client or a client's family, or within their hearing,
regardless of their age or ability to comprehend.
(3) "Sexual abuse" includes, but is not limited to, the following:
(A) Sexual harassment;
(B) Sexual coercion;
(C) Sexual assault;
(D) Allowing a client to be sexually abused or assaulted by
another; and
(E) Inciting or encouraging any of the above.
(4) "Psychological or emotional abuse" includes, but is not
limited to, the following:
(A) Intentional humiliation, harassment, malicious teasing
and unreasonable threats of punishment or deprivation;
(B)Unreasonably failing or refusing to consider a client's
wishes, punitively restricting a client's contact with family,
friends or others, or ignoring client's needs for verbal and
emotional contact; and
(C) Violating a client's right to privacy or confidentiality
by discussing his or her condition, treatment or personal affairs
with anyone who does not have a right to such information.
(5) "Neglect" includes, but is not limited to, the
following:
(A) Failure to provide adequate nutrition and fluids unless
medically indicated and ordered;
(B) Failure to take precautionary measures, which have been
ordered, to protect the health and safety of the client.
(C) Failure to attend to the hygienic needs of a client,
such as toileting and bathing;
(D) Failure to provide necessary services that result or may
result in harm or injury to a client, such as failing to turn a-
fast client or leaving a client in a soiled bed;
(E) Failure or refusal to provide a necessary service or
withholding food, medicine or fluid for the purpose of punishing
or disciplining a client.
(F) Failure to notify a responsible person in the event of
a change in the client's physical, mental or emotional condition
which a reasonably prudent person would recognize as significant;
(G) Failure to notify a responsible person in the event of
an incident involving a client that results or could result in
injury; and
(H) Failure to report observed or suspected client abuse or
neglect, or misappropriation or destruction of a client's property:
Provided, That isolated instances of inadvertent and
insignificant omissions in patient care do not constitute neglect
under this subdivision.
(6) "Misappropriation of a client's property" includes, but
is not limited to, the following:
(A) Theft or attempted theft of client's money or personal
property;
(B) Theft of a client's medication; and
(C) Inappropriate or unauthorized use of a client's funds or
property.
§27-18-2. Behavioral health 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 which
shall contain the names and other pertinent information of
persons who have been found to have committed acts of abuse,
neglect or misappropriation or destruction of client property, as
defined in section one of this article.
(b) The secretary hereby authorized and directed to
promulgate rules which further define terms, establish standards of conduct and delineate procedures, consistent with this
article, to implement and effectuate its purpose.
(c) All persons who are employed by any behavioral health
services facility or by any service provider which is subject to
licensing requirements as a behavioral health services provider
are subject to the provisions of this article, including case
management, individual and group therapy, residential treatment,
day care or treatment, crisis assistance, personal care,
sheltered employment and substance abuse treatment.
§27-18-3. Reporting.
(a) Any employee of a behavioral health facility or other
professional legally required to report adult abuse and who has
reasonable cause to believe that a client has been abused,
mistreated or neglected or whose property has been intentionally
damaged or misappropriated, shall immediately report such
incident to the behavioral health abuse registry.
(b) Any person may make a report to the abuse registry if he
or she has reason to believe that a behavioral health services
recipient has been abused or neglected or that their property has
been misappropriated or intentionally damaged.
(c) No person making any oral or written report may be held
liable in any civil or criminal action by reason of such report
if it was made in good faith under the reasonable belief at the
time that such abuse, neglect or misappropriation of property has
taken place.
(d) No behavioral health services provider may discharge or
otherwise discriminate or retaliate against any person, by any
means, who in good faith makes or causes to be made a report, or
who testifies or who is about to testify in any proceeding
concerning client abuse or neglect or misappropriation or
destruction of a client's property.
(e) The provisions in subsections (c) and (d) of this
section do not apply to any person who has been found by the
secretary to have engaged in abuse or neglect of a client, or
misappropriation or destruction of a client's property, nor do
those provisions apply to any person who has been found to have
knowingly and willfully made a false allegation of abuse or
neglect of a client, or of misappropriation or destruction of a
client's property.
(f) To the extent permissible by applicable law, the identity of any individual who reports an incident to the
registry 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 as is requested and deemed necessary by the
secretary.
§27-18-4. Investigations.
(a) Each allegation of abuse or neglect of a client, or
misappropriation or destruction of a client's property shall be
promptly investigated by the office.
(b) If upon investigation, the office determines that a
report of client abuse or neglect, or misappropriation or
destruction of client property cannot be confirmed or
substantiated, the report shall be kept on file for two years
from the date of the report. In such case, the office shall
notify the individual who was the subject of the investigation in
writing, advising him or her of the substance of the allegations
and stating that the report will be maintained for two years,
after which time it shall be expunged from the records of the
office and from the individual's file:
Provided, That if additional reports concerning that individual are received by the
registry within the two year period specified above, any prior
unconfirmed reports may be reopened and reinvestigated.
(c) An investigation of any report may include any or all of
the following elements:
(1) A visit to the facility involved.
(2) A private interview with the client in question, if
possible.
(3) Observation of the client within the facility
environment, if possible.
(4) An examination of the client's medical and other
records, and any other documentation or evidence which may be
relevant to the allegations involved.
(5) Assessment of client's physical and mental functional
level;
(6) An examination of any documents prepared by the
facility's personnel which relate to any incident of suspected
client abuse or neglect or misappropriation or destruction of
client property, including any investigation of that incident
conducted by the facility's staff;
(7) An evaluation of the nature, extent and cause or causes
of the injury or harm suffered by the client in question.
(8) Interviews with any individuals who may possess
information relevant to the allegations involved and who are
reasonably available for such an interview, including persons who
are not employed by the facility, such as contractors or outside
service providers;
(9) An attempt to identify the person or persons responsible
for the alleged client abuse or neglect, or the misappropriation
or destruction of client property;
(10) An interview with the person or persons allegedly
responsible for any incidents; and
(11) An evaluation of the environment within the facility
and the potential risks of additional injury or harm to that
clients or others.
§27-18-5. Determination.
(a) After the office has concluded its investigation, the
review board created in accordance with this article shall
determine whether sufficient credible evidence exists to support
a finding that the alleged conduct occurred. If the review board concludes that such evidence exists, the office shall promptly
notify the subject of the investigation and inform him or her of
the right to review the record and, within ten days, submit the
right to review the record and, within ten days, submit
additional information to correct any inaccuracies or omissions.
(b) If additional information is submitted within the time
allowed, the review board shall reconsider the matter. If the
initial adverse conclusion is sustained upon reconsideration, or
if the individual submits no additional information within the
time allowed, the office shall advise the individual of his or
her right to request a hearing before a hearing examiner and the
right to be represented in such proceeding by counsel or another
representative.
(c) The office shall advise the individual that if a hearing
is not requested within twenty days from the mailing of the
notice, such right to a hearing will be considered to have been
waived, and the individual's name shall be permanently placed in
the abuse registry. If the right to a hearing is considered to
have been waived under this subsection, that fact must be entered
on the registry along with the individual's name and reported to him or her by the office within ten days of such inclusion.
(d) All notices required by the provisions of this article
to be provided by the office shall be sent to the subject
individual by certified mail, return receipt requested, at his or
her last known address. If receipt of any notice required by
this article to be sent to an individual is not certified by a
signed return, the office shall take any reasonable steps within
its power to locate the individual and advise him or her of the
substance of any allegations made and any action taken against
him or her.
§27-18-6. Hearing.
(a) If the person against whom the allegations have been
made requests a hearing within the time allowed under the
provisions of section five of this article, the office shall,
within twenty days from the receipt of such request, notify the
individual of the date, time and location of the hearing:
Provided, That the hearing shall be held at a time and place
which is reasonably convenient for the individual and any
witnesses who may attend and shall be commenced within forty-five
days from the date of a request for hearing was received by the office.
(b) The hearing shall be presided over by a hearing
examiner, appointed by the secretary, who shall conduct the
proceeding in a fair and impartial manner, control the order of
proof, and rule on objections and the admissibility of evidence.
Both the office and the individual against whom the allegations
have been made may be represented in the hearing and shall be
afforded an opportunity to present relevant oral and written
evidence and cross examine witnesses.
(c) Within thirty days of the conclusion of the hearing, the
hearing examiner shall submit to the secretary, or his or her
designee, a recommended order which shall find either for or
against the individual. If the recommendation of the hearing
examiner is in favor of the individual, the secretary shall,
within ten days after receipt of the recommendation, notify the
individual and issue an order to dismiss the case and expunge any
record or entry on the registry which relates to the subject of
the hearing.
(d) If the recommendation of the hearing examiner is against
the individual, the secretary shall, within ten days after receipt of the recommendation, notify the individual of the
adverse determination. This notice shall advise the individual
of his or her right to file a petition for judicial review, in
the circuit court of the county wherein he or she resides or in
the circuit court for Kanawha County, in accordance with section
four, article five, chapter twenty-nine-a of this code, and that
if such a petition is not filed within thirty days from the
mailing of such notice, the individual's name shall be
permanently placed in the abuse registry.
§27-18-7. Criminal penalties.
In addition to any other penalties provided by law:
(a) Any person subject to subsection (a), section three of
this article, who witnesses client abuse or neglect or
misappropriation or destruction of a client's property and who
fails to make a report as required by law is guilty of a
misdemeanor and shall be fined not more than one hundred dollars,
imprisoned for not more than ten days, or both fined and
imprisoned.
(b) Any person having actual care, custody or control of a
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 the
West Virginia code, section fifteen, article six, chapter nine.
§27-18-8. Behavioral health facilities responsibilities.
(a) All licensed behavioral health service providers or
state owned or operated facilities providing behavioral health
services shall adopt and implement written policies and
procedures for the following:
(1) Notification to employees and contractors that they are
or may be subject to the provisions of this article;
(2) Training for staff in adherence to the provisions of
this article and any rules promulgated thereunder;
(3) The use of non-abusive intervention strategies for
dealing with inappropriate client behavior, including actions
that are disruptive to other clients or to facility operations
and those which present a risk of physical endangerment to the
client or others; and
(4) Procedures for consulting the abuse registry to verify
that behavioral health job applicants who may be selected for employment are not listed on the abuse registry.
(b) These policies and procedures must ensure that all
incidents of suspected client abuse or neglect or
misappropriation or destruction of client are reported to the
abuse registry as established and required by this article, and
to the local adult or child protective services office or
appropriate law-enforcement agency as required.
(c) All facilities which are subject to the provisions of
this article shall develop and adopt personnel policies which
establish procedures to be followed in cases where employees are
suspected or accused of client abuse or neglect or
misappropriation or destruction of client property:
Provided,
That in any case in which an investigation is initiated by the
office, the employee against whom the allegations have been made
shall be suspended or placed on administration leave, pending a
final determination by the secretary.
NOTE: The purpose of this bill is to establish a behavioral
health services adult health abuse registry; provide definitions;
define types of abuse and neglect; establish reporting
requirements and procedures; provide for hearings in contested
cases; provide criminal penalties for failure to report certain abuse or neglect; impose certain duties upon behavioral health
facilities; criminal penalties for offenders; authorize the
secretary of the department of health and human resources to
promulgate rules; and to redesignate the title of chapter
twenty-seven of the code from "Mentally Ill Persons" to
"Individuals with Behavioral Health Disorders."
These sections are new; therefore, strike-throughs and
underscoring have been omitted.
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