SB351 SUB1 CFB
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 351
(By Senators Bailey, Macnaughtan, Miller, Walker,
White, Buckalew, Wagner, Blatnik, Bowman and Chafin)
_____________
(Originating in the Committee on Government Organization;)
[reported February 22, 1996]
_____________
A BILL to amend chapter fifteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article two-c; and to
amend article seven, chapter fifty-five of said code by
adding thereto a new section, designated section eighteen,
all relating to establishing a central abuse registry;
defining terms; requiring certain individuals convicted of
a felony or misdemeanor offense with respect to a child or
incapacitated adult to be placed on registry; requiring
prosecuting attorneys to report certain convictions;
permitting disclosure of certain information; providing for
expungement of listings in certain circumstances;
establishing user fees for registry purposes; establishing service provider responsibilities; and providing limited
immunity from suit for residential care facilities, day care
centers and home care service providers disclosing
employment information.
Be it enacted by the Legislature of West Virginia:
That chapter fifteen of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article two-c; and that
article seven, chapter fifty-five of said code be amended by
adding thereto a new section, designated section eighteen, all to
read as follows:
CHAPTER 15. DIVISION OF PUBLIC SAFETY.
ARTICLE 2C. CENTRAL ABUSE REGISTRY.
§15-2C-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) "Central abuse registry" or "registry" means the
registry created by this article which shall contain the names of
individuals who have been convicted of a felony or a misdemeanor
offense constituting abuse, neglect or misappropriation of the
property of a child or an incapacitated adult.
(b) "Child abuse and neglect" or "child abuse or neglect"
means those terms as defined in section three, article one,
chapter forty-nine of this code, and shall include any act with
respect to a child which is a crime against the person pursuant
to article two, chapter sixty-one of this code, any act which is
unlawful pursuant to article eight-d of said chapter sixty-one,
and any offense with respect to a child which is enumerated in
section three of this article, whether or not the act is
prosecuted pursuant to the criminal law of this state.
(c) "Abuse or neglect of an incapacitated adult" means
"abuse" "neglect" and "incapacitated adult" as those terms are
defined in section one, article six, chapter nine, and shall
include any act with respect to an incapacitated adult which is
a crime against the person pursuant to article two, chapter
sixty-one of this code, and any offense with respect to an
incapacitated adult which is enumerated in section three of this
article, whether or not the act is prosecuted pursuant to the
criminal law of this state.
(d) "Conviction" of a felony or a misdemeanor means an
adjudication of guilt by a court or jury following a hearing on
the merits, or entry of a plea of guilty or nolo contendere.
(e) "Residential care facility" means any facility where
a child or an incapacitated adult resides which is subject to registration, licensure or certification by the department of
health and human resources, and shall include nursing homes,
personal care homes, residential board and care homes, adult
family care homes, group homes, legally unlicensed service
providers, residential child care facilities, family based foster
care homes, specialized family care homes and intermediate care
facilities for the mentally retarded.
(f) "Misappropriation of property" means any act which is
a crime against property under article three, chapter sixty-one
of this code with respect to a child in a residential care
facility or an incapacitated adult in a residential care facility
or a child or an incapacitated adult who is a recipient of home
care services, whether or not the act is prosecuted pursuant to
the criminal law of this state.
(g) "Home care" or "home care services" means services
provided to children or incapacitated adults in the home though
a hospice provider, a community care provider, a home health
agency, through the medicaid waiver program, or through any
person when that service is reimbursable under the state medicaid
program.
(h) "Requester" means any residential care facility, any
state licensed day care center, or any provider of home care services providing to the central abuse registry the name of an
individual and other information necessary to identify that
individual, and either (1) certifying that the individual is
being considered for employment by the requester or for a
contractual relationship with the requester wherein the
individual will provide services to a child or an incapacitated
adult for compensation; or (2) certifying that an allegation of
abuse, neglect or misappropriation of property has been made
against the individual.
§15-2C-2. Ce
ntral abuse registry; required information;
procedures.
(a) The criminal identification bureau of the West
Virginia state police shall establish a central abuse registry,
to contain information relating to criminal convictions following
reports of child abuse or neglect, abuse or neglect of an
incapacitated adult, and misappropriation of property.
(b) The central abuse registry shall contain, at a
minimum, information relating to: (1) convictions of a
misdemeanor or a felony constituting abuse, neglect or
misappropriation of property, by an individual performing
services for compensation, within the scope of the individual's
employment or contract to provide services, in a residential care
facility, in a licensed day care center, or in connection with the provision of home care services; (2) information relating to
individuals convicted of specific offenses enumerated in
subsection (a), section three of this article with respect to a
child or an incapacitated adult; and (3) information relating to
all individuals required to register with the West Virginia state
police as sex offenders pursuant to the provisions of article
eight-f, chapter sixty-one of this code. The central abuse
registry shall contain the following information with respect to
an individual found to have committed an act of abuse, neglect or
misappropriation of property, or an individual convicted of a
felony offense:
(1) The individual's full name;
(2) Sufficient information to identify the individual,
including date of birth and social security number if available;
(3) Identification of the criminal offense constituting
abuse, neglect or misappropriation of property of a child or an
incapacitated adult;
(4) For cases involving allegations of abuse, neglect or
misappropriation of property of a child or an incapacitated adult
in a residential care facility or a day care center, or of a
child or an incapacitated adult receiving home care services,
sufficient information to identify the location where such
documentation of any investigation by the department of health and human resources is on file and the location of pertinent
court files; and
(5) Any statement by the individual disputing the
allegation, if he or she chooses to make and file one.
(c) Upon conviction in the criminal courts of this state
of a misdemeanor or a felony offense constituting child abuse or
neglect or abuse or neglect of an incapacitated adult, the
individual so convicted shall be placed on the central abuse
registry.
§15-2C-3. Reports of certain convictions by prosecuting
attorneys.
(a)
The central abuse registry shall maintain information
relating to child abuse or neglect, abuse or neglect of an
incapacitated adult, and misappropriation of property with
respect to individuals convicted of certain offenses pursuant to
this code, when the victim of the crime is a child or an
incapacitated adult, to include:
(1) First or second degree murder pursuant to section one,
article two, chapter sixty-one of this code;
(2) Voluntary manslaughter pursuant to section four,
article two, chapter sixty-one of this code;
(3) Attempt to kill or injure by poison pursuant to
section seven, article two, chapter sixty-one of this code;
(4) Malicious or unlawful assault pursuant to section
nine, article two, chapter sixty-one of this code;
(5) Assault during commission of or attempt to commit a
felony pursuant to section ten, article two, chapter sixty-one of
this code;
(6) Extortion by threats pursuant to section thirteen,
article two, chapter sixty-one of this code;
(7) Abduction of a person or kidnapping or concealing a
child pursuant to section fourteen, article two, chapter sixty-
one of this code;
(8) Enticing away or otherwise kidnapping any person
pursuant to section fourteen-a, article two, chapter sixty-one of
this code;
(9) A misdemeanor or felony sexual offense pursuant to
article eight-b, chapter sixty-one of this code;
(10) Filming of sexually explicit conduct of minors
pursuant to article eight-c, chapter sixty-one of this code;
(11) Misdemeanor or felony child abuse pursuant to article
eight-d, chapter sixty-one of this code;
(12) A violent crime against the elderly which is an
offense under the provisions of section nine or ten, article two,
chapter sixty-one of this code which is subject to the sentencing
provisions of section ten-a of said article two; or
(13) A property offense pursuant to article three, chapter
sixty-one of this code, with respect to a child in a residential
care facility or an incapacitated adult in a residential care
facility or a child or an incapacitated adult who is a recipient
of home care services, when the individual committing the offense
was providing services for compensation in the residential care
facility or within the home.
(b) The prosecuting attorneys in each of the fifty-five
counties within the state, upon conviction of a misdemeanor, a
felony or a lesser included misdemeanor offense for those
specific offenses set forth in subsection (a) of this section,
shall report the conviction to the central abuse registry,
together with such additional information, provided in such form,
as may be required by the criminal identification bureau for
registry purposes. Reporting procedures shall be developed by
the criminal identification bureau in conjunction with the
prosecuting attorneys' institute and the office of the
administrator of the supreme court of appeals.
(c) Information relating to convictions prior to the
effective date of this section of a misdemeanor or a felony
constituting child abuse or abuse or neglect of an incapacitated
adult shall, to the extent which is feasible and practicable, be
placed on the central abuse registry. When any requester requests information related to a named individual, the criminal
identification bureau may search other information maintained by
the bureau to determine whether that individual has been
convicted of offenses which are subject to inclusion on the
registry.
§15-2C-4. Disclosure of information.
(a) The information contained in the central abuse
registry is confidential, and may not be disclosed except as
specifically provided in this section. The criminal
identification bureau shall disclose the information described in
subdivisions one through three and subdivision five, subsection
(b), section two of this article to any requester, except that
the name of the victim of the act alleged shall not appear on the
information disclosed and shall be stricken from any statement
filed by an individual. The department of health and human
resources shall certify, not later than fifteen days following
the effective date of this section, the list of requesters
authorized to obtain registry information, and shall inform the
criminal identification bureau promptly of subsequent additions
and deletions from the list. The information contained in the
registry with respect to an individual shall be provided to that
individual promptly upon request. Individuals on the registry
requesting registry information shall be afforded the opportunity to file statements correcting any misstatements or inaccuracies
contained in the registry. The criminal identification bureau
may disclose registry information to authorized law-enforcement
and governmental agencies of the United States and its
territories, of foreign states and of the state of West Virginia
upon proper request stating that the information requested is
necessary in the interest of and will be used solely in the
administration of official duties and the criminal laws.
Agreements with other states providing for the reciprocal sharing
of abuse registry information are specifically authorized.
(b) An active file on requests for information by
requesters shall be maintained by the criminal identification
bureau for a period of one year from the date of a request. If
an individual who is the subject of the request is placed on the
registry with respect to any allegation within one year of the
date of the request, that information shall promptly be disclosed
to the requester.
§15-2C-5. Expungement of registry listing.
Registry listings of abuse, neglect or misappropriation of
property with respect to an individual shall promptly be expunged
in cases where a conviction is vacated or overturned following
appeal by a court having jurisdiction; where the record of a
conviction is expunged by a court having jurisdiction; or in cases where the individual so convicted is granted executive
clemency with respect to the conviction.
§15-2C-6. Fees.
The criminal identification bureau may charge, and any
requester shall pay a user charge of thirteen dollars for each
request for information made by a requester to the central abuse
registry. In order to expedite requests by requesters, the
criminal identification bureau may establish a procedure
permitting service providers to deposit funds with the bureau in
anticipation of requests. Fees pursuant to this section shall be
paid into a special account in the state treasury to be expended
for registry purposes:
Provided, That for and after the fiscal
year ending the thirtieth day of June, one thousand nine hundred
ninety-eight, all expenditures shall be made in accordance with
appropriation by the Legislature. Amounts collected which are
found from time to time to exceed the funds needed for central
abuse registry purposes may be transferred to other accounts or
funds and redesignated for other purposes by appropriation of the
Legislature.
§15-2C-7. Registration of home care agencies required; form of
registration; information to be provided.
(a) In order to permit providers of home care services not
otherwise required to be licensed, certified or registered with the department of health and human resources by other provision
of this code to access information in the central abuse registry,
all home care service providers not currently licensed, certified
or registered by the department shall register with the office of
health facilities licensure and certification. No fee may be
charged for registration. Registration information shall be
provided on a registration form, but no provision of information
shall be deemed to meet the registration requirement until the
signature of the service provider is recorded on the registration
form.
(b) Information required for registration shall include the
following:
(1) Name, address and telephone number of the service
provider;
(2) The geographic area where services are provided to
consumers, the number of homes where services are provided and
the number of consumers provided service; and
(3) The services, such as nursing care or personal
assistance, provided to consumers.
§15-2C-8. Service provider responsibilities.
All residential care facilities, day care centers and home
care service providers authorized to operate in West Virginia
shall:
(1) Provide notice to current employees of the agency and
other persons providing services under a contract with the agency
within sixty days of the effective date of this article, and
provide notice to any newly hired employee or person at the time
an employment or contractual relationship is entered into, which
notice shall be in the following form: "NOTICE: All service
providers in the state of West Virginia are subject to provisions
of law creating a central abuse registry. Any person providing
services for compensation to children or to incapacitated adults,
who is convicted of a misdemeanor or felony offense constituting
abuse, neglect or misappropriation of property of a child or an
incapacitated adult, is subject to listing on the central abuse
registry. The fact that a person is listed on the registry may
be disclosed in specific instances provided by law. Listing on
the registry may limit future employment opportunities, including
opportunities for employment with residential care facilities,
day care centers and home care agencies. It is the policy of
__________________ [name of agency] to promptly report all
suspected instances of abuse, neglect or misappropriation of
property to the proper authorities and to cooperate fully in the
prosecution of these offenses."
(2) Contact the abuse registry to verify that applicants
selected for employment or other contractual relationship are not listed on the abuse registry prior to the time the individual
begins employment or begins providing services to children or
incapacitated adults under any contract.
(3) Cooperate fully with law enforcement, prosecuting
attorneys and court personnel in criminal prosecutions of acts
of child abuse or neglect or abuse or neglect of an incapacitated
adult.
(4) Respond promptly to all requests by other service
providers for references for former or present employees of the
agency, which response may include a subjective assessment as to
whether the individual for whom the reference is sought is suited
to provide services to children or incapacitated adults.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-18. Limiting liability of home care service providers, day
care centers and residential care facilities
disclosing certain employment information.
When a residential care facility required to be registered,
licensed or certified under the laws of the state, a licensed day
care center, or an agency providing services in the home to
children or incapacitated adults is asked to provide an
employment reference with respect to a named individual who
provided services to children or incapacitated adults for
compensation, no person shall be liable for disclosing information related to the named individual's employment history,
including a subjective assessment of whether the named individual
is suited to provide services to children or incapacitated
adults, unless it is alleged and proven that the information
disclosed was false and disclosed with knowledge that the
information was false.