ENGROSSED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 624
(By Senator Tomblin, Mr. President)
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[Originating in the Committee on Finance;
reported March 1, 2004.]
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A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §6C-2-1, §6C-2-2,
§6C-2-3, §6C-2-4, §6C-2-5 and §6C-2-6; and to amend and
reenact §15-2C-1 and §15-2C-4 of said code, all relating to
requiring state agencies and entities to conduct criminal and
driving record checks when initially hiring employees and
individuals seeking to provide services through personal
service contracts; confidentiality; duties of the state
police; promulgation of legislative rules by the division of
personnel of the department of administration; central abuse
registry; definitions; and disclosure of information.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §6C-2-1, §6C-2-2,
§6C-2-3, §6C-2-4, §6C-2-5 and §6C-2-6; and that §15-2C-1 and §15-2C-4 of said code be amended and reenacted, all to read as
follows:
CHAPTER 6C. PUBLIC EMPLOYEES.
ARTICLE 2. CRIMINAL AND DRIVING HISTORY INVESTIGATIONS FOR PUBLIC
EMPLOYMENT.
§6C-2-1. Legislative finding.
The Legislature finds that individuals that have been
convicted of certain crimes or have a poor driving history may not,
under some circumstances, be appropriate candidates for certain
types of public employment. The determination as to whether or not
a particular criminal offense history or driving record is relevant
to an applicant's suitability for employment is best made by the
state agency or entity.
§6C-2-2. Investigations required; definition.
(a) Each state agency or entity shall conduct investigations
necessary to ensure the security and integrity of the operation of
the state agency or entity of:
(1) Applicants for initial employment in the state agency or
entity; and
(2) Subject to rules promulgated pursuant to section five of
this article, persons seeking to provide personal services through
a contract.
(b) The agency or entity shall require persons subject to the
investigations to provide information, including fingerprints,
needed by the state police for processing or as otherwise necessary to facilitate access to driving records and state and federal
criminal history information.
(c) As used in this article, a "state agency or entity" means
any department, division, agency or institution of the state
government of West Virginia that has hiring or contracting
authority and includes, but is not limited to, the governor,
attorney general, auditor, secretary of state, treasurer, board of
investments, commissioner of agriculture, higher education policy
commission, the higher education governing boards and all agencies
and institutions of higher education.
§6C-2-3. Consideration of criminal convictions; and driving
history.
(a) Each state agency or entity shall consider the criminal
conviction record of an individual prior to employing the
individual. The state agency or entity shall consider the
applicability of a conviction to the possible position in
determining whether the employment of the individual would be
consistent with the safe and efficient operation of the state
agency or entity. The circumstances to consider may include the
time, nature and number of convictions, the facts surrounding each
offense, the job-relatedness of each conviction, the length of time
between a conviction and the employment decision, the individual's
employment history before and after the conviction and the
individual's efforts at rehabilitation.
(b)(1) Each state agency or entity shall consider the driving
record of an individual prior to employing the individual into a position requiring the individual to possess a driver's license.
(2) Subject to the provisions of article two-a, chapter
seventeen-a of this code, the commissioner of motor vehicles shall
furnish full information regarding the driving record of any
individual to any state agency or entity employing or considering
employing the individual. The state agency or entity is
responsible for paying the fee, if any, established pursuant to
section nine, article two-a, chapter seventeen-a of this code.
(3) In the event the individual under consideration by the
state agency or entity has had a driver's license issued to him or
her by a jurisdiction other than West Virginia within ten years
from the date of the individual's application for employment, the
state agency or entity shall request the driving record from the
other jurisdiction and consider it prior to employing the
individual.
(c) After rules are promulgated pursuant to subsection (c),
section five of this article, prior to entering into a contract for
personal services and subject to the rules, each state agency or
entity shall consider:
(1) The criminal conviction record of each individual who will
be providing personal services to the agency or entity through the
contract; and
(2) The driving record of each individual providing services
through the contract whose service requires, directly or
indirectly, the individual to possess a driver's license.
§6C-2-4. Requirement to request criminal history information; state police duties.
(a)(1) Each state agency or entity may request criminal
history information of prospective employees from the state police
and appropriate federal law-enforcement agencies, including, but
not limited to, the federal bureau of investigation.
(2) Each state agency or entity shall maintain the
confidentiality of information it receives that is required to be
kept confidential.
(3) The state agency or entity is responsible for payment of
applicable fees incurred in obtaining criminal history information.
(b) Except as provided in section three of this article, each
state agency or entity shall request, and the state police, upon
proper request, shall disclose to a state agency or entity
information contained in the central abuse registry under the
conditions and procedures provided in section four, article two-c,
chapter fifteen of this code.
(c) The following are exempt from the requirements of
subsection (b) of this section:
(1) An institution of higher education when hiring a student
attending the institution; and
(2) State agencies and entities hiring temporary workers under
a summer work program, educational intern program or similar
programs.
§6C-2-5. Rules.
(a)(1) The division of personnel of the department of
administration shall propose legislative rules for legislative approval in accordance with the provisions of article three,
chapter twenty-nine-a of this code to aid in the implementation of
this article. The rules shall, at a minimum, contain provisions:
(A) Addressing the retention and safe-keeping of confidential
information received pursuant to this article;
(B) Providing guidance for state agencies or entities in
interpreting and applying information received pursuant to this
article; and
(C) Establishing uniform procedures to be followed by state
spending units in complying with this article.
(2) The division of personnel shall, notwithstanding the
provisions of article three, chapter twenty-nine-a of this code
promulgate emergency rules by the first day of July, two thousand
four. The emergency rules may be effective no longer than the
first day of August, two thousand five.
(3) Rules adopted or promulgated pursuant to this subsection
apply to all executive agencies, including the office of the
governor, except those mentioned in subsection (b) of this section.
(b)(1) The attorney general, auditor, secretary of state,
treasurer, board of investments, commissioner of agriculture,
higher education policy commission and the higher education
governing boards shall adopt, promulgate or propose rules for
legislative approval, as appropriate, to aid in the implementation
of this article for their respective state agencies or entities.
The rules shall, at a minimum, contain provisions:
(A) Addressing the retention and safe-keeping of confidential information received pursuant to this article;
(B) Providing guidance in interpreting and applying
information received pursuant to this article; and
(C) Establishing uniform procedures to be followed in
complying with this article.
(2) The rules shall be adopted or promulgated within the same
times specified in subsection (a) of this section. If legislative
rules are considered necessary to fully implement the provisions of
this article, the rules, notwithstanding the provisions of article
three, chapter twenty-nine-a of this code, shall be promulgated as
emergency rules. In that case, the rules shall be promulgated by
the first day of July, two thousand four. The emergency rules may
be effective no longer than the first day of August, two thousand
five.
(c) The purchasing division of the department of
administration, after consulting with the division of personnel,
shall propose rules for legislative approval in accordance with the
provisions of article three, chapter twenty-nine-a of this code
necessary to implement the provisions of this article concerning
the conducting of background checks under the provisions of
subsection (c), section three of this article by the first day of
August, two thousand four. The rules may not be promulgated as
emergency rules and shall, at a minimum, contain provisions:
(A) Addressing the retention and safe-keeping of confidential
information received pursuant to this article;
(B) Providing guidance for state in interpreting and applying information received pursuant to this article;
(C) Establishing uniform procedures to be followed by state
spending units in complying with this article; and
(D) Establishing criteria and procedures to be used in
identifying the:
(i) Types of personal service contracts that require
background checks to be performed on individuals who will be
providing services to a state agency or entity under the contracts;
and
(ii) Individuals upon which the background checks will be
conducted.
§6C-2-6. Compliance date.
Except as otherwise provided in subsection (c), section three
of this article, all state spending units shall begin complying
with the provisions of sections two, three and four of this article
by the first day of July, two thousand four.
CHAPTER 15. 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 or an adult receiving
behavioral health services.
(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 includes 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 and any
offense with respect to a child which is enumerated in section
three of this article.
(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 of this code and
shall include includes 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.
(d) "Adult receiving behavioral health services" means a
person over the age of eighteen years who is receiving any
behavioral health service from a licensed behavioral health
provider or any behavioral health provider whose services are paid
for, in whole or in part, by medicaid or medicare.
(e) "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.
(f) "Residential care facility" means any facility where a
child or an incapacitated adult or an adult receiving behavioral
health services resides which is subject to registration, licensure
or certification by the department of health and human resources
and
shall include includes 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.
(g) "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 or an adult receiving behavioral health
services in a residential care facility or a child or an
incapacitated adult or an adult receiving behavioral health
services who is a recipient of home care services.
(h) "Home care" or "home care services" means services
provided to children or incapacitated adults or adults receiving
behavioral health services in the home through 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.
(i) "Requester" means the West Virginia department of
education, any residential care facility, any state-licensed day
care center or any provider of home care services or an adult receiving behavioral health 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 or an adult receiving behavioral health services for
compensation; or (2) certifying that an allegation of abuse,
neglect or misappropriation of property has been made against the
individual;
"requester" also includes a state agency and entity, as
defined in section two, article two, chapter six-c of this code,
certifying that the individual is being considered for employment
by the state agency or entity or for a contractual relationship
requiring the performance of personal services with the state
agency and entity.
§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 (1) through (3),
inclusive, and subdivision (5), subsection (b), section two of this
article to any requester, except that the name of the victim of the
act alleged
shall may 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,
not otherwise authorized
by the provisions of
section three, article three, chapter six-c of this code, that are
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 conviction within one year of the date of the
request, that information shall promptly be disclosed to the
requester.
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