WEST virginia legislature
2020 regular session
Senate Bill 717
By Senators Maroney, Cline, Hamilton, Prezioso, Rucker, Swope, Sypolt, Takubo, Trump, Weld, Stollings, and Smith
[Introduced February 6,
to the Committee on the Judiciary]
A BILL to amend and reenact §9-6-1, §9-6-2, §9-6-3, §9-6-4, §9-6-5, §9-6-6, §9-6-7, §9-6-8, §9-6-9, §9-6-10, §9-6-11, §9-6-13, and §9-6-16 of the Code of West Virginia, 1931, as amended, all relating to adult protective services, abuse, neglect, vulnerable adults; amending the definition of “financial exploitation” to include the use of undue influence; redefining “caregiver”, defining “fiduciary” and “undue influence”; replacing old terms and adding new terms; providing for the release of investigative summaries of substantiated and unsubstantiated reports of abuse, neglect, or financial exploitation to certain individuals; adding employees of a financial institution as mandated reporters of suspected abuse, neglect, or financial exploitation; and providing for the release of suspicious financial transactions to Adult Protective Services.
Be it enacted by the Legislature of West Virginia:
ARTICLE 6. SOCIAL SERVICES FOR ADULTS.
As used in this article:
(1) “Adult protective services agency” means any public or nonprofit private agency,
corporation, board or organization furnishing protective services to adults;
(2) “Adult Protective Services” means services provided to vulnerable adults as the secretary may specify and may include, but are not limited to, services such as:
(A) Receiving reports of adult abuse, neglect or exploitation;
(B) Investigating the reports of abuse, neglect or exploitation;
(C) Case planning, monitoring, evaluation and other case work and services; and
(D) Providing, arranging for or facilitating the provision of medical, social service,
economic, legal, housing, law enforcement or other protective, emergency or support services.
(2) (3) “Abuse” means the infliction or threat to
inflict of physical or psychological harm, including the use of
undue influence, pain or injury on or the imprisonment of any incapacitated
vulnerable adult or facility resident; (3) (4) “Neglect” means the unreasonable failure
by a caregiver to provide the care necessary to assure maintain the
physical safety or health of an incapacitated a vulnerable
adult or self-neglect by a vulnerable adult, including the use of undue
influence by a caregiver to cause self-neglect. (4) (5) “ Incapacitated Vulnerable adult”
means any person over the age of 18, or an emancipated minor, who by
reason of physical , mental or other infirmity or mental condition
is unable to independently carry on the daily activities of life necessary to
sustaining life and reasonable health and protection. As used in this
article, all facility residents are considered vulnerable adults;
(5) (6) “Emergency” or “emergency situation” means a situation or set of circumstances which presents a substantial and immediate risk of death or serious injury to an incapacitated a vulnerable adult;
(6) (7) “Financial exploitation” means the intentional misappropriation, or misuse or use of undue influence to cause the misuse of funds or assets of an incapacitated a vulnerable adult or facility resident, but does not apply to a transaction or disposition of funds or assets where a person made a good faith effort to assist the incapacitated vulnerable adult or facility resident with the management of his or her money or other things of value;
(7) (8) “Legal representative” means a person lawfully invested with the power and charged with the duty of taking care of another person or with managing the property and rights of another person, including, but not limited to, a guardian, conservator, medical power of attorney representative, trustee, or other duly appointed person;
(8) (9) “Nursing home” or “facility” means any institution, residence, intermediate care facility for individuals with an intellectual disability, care home or any other adult residential facility, or any part or unit thereof, that is subject to the provisions of §16-5C-1 et seq., §16-5D-1 et seq. §16-5E-1 et seq., or §16-5H-1 et seq. of this code;
(9) (10) “Regional long-term care ombudsman” means any paid staff of a designated regional long-term care ombudsman program who has obtained appropriate certification from the Bureau for Senior Services and meets the qualifications set forth in §16-5I-7 §16-5L-7 of this code;
(10) (11) “Facility resident” means an individual
living in a nursing home or other facility, as that term is defined in
(7) (9) of this section;
(11) (12) “Responsible family member” means a member of a resident’s family who has undertaken primary responsibility for the care of the resident and who has established a working relationship with the nursing home or other facility in which the resident resides. For purposes of this article, a responsible family member may include someone other than the resident’s legal representative;
(12) (13) “State Long-term Care Ombudsman” means an individual who meets the qualifications of §16-5I-5 §16-5L-5 of this code and who is employed by the State Bureau for Senior Services to implement the State Long-term Care Ombudsman Program;
(13) (14) “Secretary” means the Secretary of the Department of Health and Human Resources;
(14) (15) “Caregiver” means a person or entity who cares for or shares in the responsibility for the care of an incapacitated adult on a full-time or temporary basis, regardless of whether such person or entity has been designated as a guardian or custodian of the incapacitated adult by any contract, agreement or legal procedures. Caregiver includes health care providers, family members, and any person who otherwise voluntarily accepts a supervisory role towards an incapacitated adult. means an individual who is responsible for the care of a vulnerable adult or a facility resident, either voluntarily, by contract, by receipt of payment for care, or as a result of the operation of law, and means a family member or other individual who provides (on behalf of such individual or of a public or private agency, organization, or institution) compensated or uncompensated care to an adult with disabilities or a facility resident who needs supportive services in any setting.
(16) “Fiduciary” means a person or entity with the legal responsibility to make decisions on behalf of and for the benefit of another person; and to act in good faith and with fairness; and includes a trustee, a guardian, a conservator, an executor or an agent under a financial power of attorney or health.
(17) “Undue Influence” means excessive persuasion that causes a vulnerable adult to act or refrain from acting by overcoming that person’s free will and that results in inequity.
(A) In determining whether a result was produced by undue influence, all of the following shall be considered:
(i) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependence, and whether the influencer knew or should have known of the alleged victim’s vulnerability.
(ii) The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert or other qualification.
(iii) The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to, controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep; use of affection, intimidation or coercion; or initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes.
(iv) The equity of the result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship.
(B) Evidence of an inequitable result, without more, is not sufficient to prove undue influence.
§9-6-2. Adult protective services; immunity from civil liability; rules; organization and duties.
(a) There is continued within the Department of Health and Human Resources the system of adult protective services heretofore existing.
(b) The secretary shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code regarding the organization and duties of the adult protective services system and the procedures to be used by the department to effectuate the purposes of this article. The rules may be amended and supplemented from time to time.
(c) The secretary shall design and arrange such rules to attain, or move toward the attainment of, the following goals to the extent that the secretary believes feasible under the provisions of this article within the state appropriations and other funds available:
(1) Assisting vulnerable adults who are abused, neglected or financially exploited or incapacitated in achieving or maintaining self-sufficiency and self-support and preventing, reducing and eliminating their dependency on the state;
(2) Preventing, reducing, and eliminating neglect, financial exploitation, and abuse of adults who are unable to protect their own interests;
(3) Preventing and reducing institutional care of adults by providing less intensive forms of care, preferably in the home;
(4) Referring and admitting abused, neglected or financially exploited or incapacitated vulnerable adults to institutional care only where other available services are inappropriate;
(5) Providing services and monitoring to adults in institutions designed to assist adults in returning to community settings;
(6) Preventing, reducing and eliminating the exploitation of incapacitated vulnerable adults and facility residents through the joint efforts of the various agencies of the Department of Health and Human Resources, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities, and county prosecutors;
(7) Preventing, reducing and eliminating abuse, neglect and financial exploitation of residents in nursing homes or facilities; and
(8) Coordinating investigation activities for complaints of financial exploitation, abuse and neglect of incapacitated vulnerable adults and facility residents among the various agencies of the Department of Health and Human Resources, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities, county prosecutors, if necessary, and other state or federal agencies or officials, as appropriate.
(d) No adult protective services caseworker may be held personally liable for any professional decision or action thereupon arrived at in the performance of his or her official duties as set forth in this section or agency rules promulgated thereupon: Provided, That nothing in this subsection protects any adult protective services worker from any liability arising from the operation of a motor vehicle or for any loss caused by gross negligence, willful and wanton misconduct or intentional misconduct.
(e) The rules proposed by the secretary shall provide for the means by which the department shall cooperate with federal, state and other agencies to fulfill the objectives of the system of adult protective services.
§9-6-3. Cooperation among agencies; termination and reduction of assistance by commissioner.
The secretary shall direct the coordination of the investigation of complaints of abuse, or neglect, or financial exploitation made pursuant to this article and the various agencies of the department, the adult protective services system, the state and regional long-term care ombudsmen, administrators of nursing homes or other residential facilities, county prosecutors, and any other applicable state or federal agency shall cooperate among each other for the purposes of observing, reporting, investigating, and acting upon complaints of abuse, or neglect, or financial exploitation of any incapacitated vulnerable adult or facility resident in this state.
§9-6-4. Action to abate abuse, neglect, or emergency.
The department or any
reputable person may bring and maintain an action against any person having
actual care, custody, or control of an
incapacitated a vulnerable adult,
for injunctive relief, including a preliminary injunction, to restrain and
abate any abuse or neglect of an
incapacitated a vulnerable adult
or to abate an emergency situation. In any such proceeding the court shall
appoint a guardian ad litem, to protect the interests of the incapacitated vulnerable
adult, who shall not be an employee of the state nor be a party to the
proceeding nor be selected by or in the employ of any party to the proceeding: Provided,
the court may by order terminate assistance granted or paid to any person found
to have abused, or neglected or financially exploited an incapacitated a
vulnerable adult and order any such assistance to be paid to another person
solely for the use and benefit of such abused, or neglected or
exploited person, and grant such other equitable relief as may be
appropriate in the circumstances to restrain and abate such abuse or neglect: Provide
d, however, That in the case of an action to abate an emergency
situation, the court may grant the relief authorized in section five of this
§9-6-5. Emergency immediate remedial treatment; procedure.
Whenever a circuit court shall find in an action to abate an emergency situation that there is probable cause to believe that an incapacitated a vulnerable adult is in an emergency situation and that the person or persons having the immediate care, custody and control of such incapacitated vulnerable adult refuses to take necessary steps to alleviate such emergency, or that such incapacitated vulnerable adult is without the actual care, custody, and control of any persons, it may issue an order of attachment for such incapacitated vulnerable adult and direct that the peace officer executing the same deliver such incapacitated vulnerable adult in his custody to a hospital or other safe place except a jail, for immediate remedial treatment to reduce or avoid the risk of death or serious injury. In the event that an order of attachment is issued pursuant to this section, any peace officer executing the order, and such employees of the department the peace officer directs to accompany him, may enter into the place of abode to remove such incapacitated vulnerable person, notwithstanding the residence therein of other persons.
If any employee or officer of the department shall by direct observation of an incapacitated a vulnerable adult not in the immediate care, custody or control of another have reasonable cause to believe that such incapacitated vulnerable person is then and there in an emergency situation, then such officer or employee may offer transportation to a hospital or other safe place, other than a jail, to such incapacitated vulnerable adult for immediate remedial treatment to reduce or avoid the risk of death or serious injury.
Immediately upon delivery of any incapacitated vulnerable person to such hospital or other safe place, such officer or employee shall apply to the circuit court for and the court shall appoint, and in the case of an attachment the court shall contemporaneously with its issuance appoint, a guardian ad litem who shall not be an employee of the state, nor be an interested party nor be selected by nor in the employ of any interested party, to represent the interests of such incapacitated vulnerable adult, and the court shall fix a time, not later than one judicial day later, to determine if such remedial treatment shall continue or such incapacitated vulnerable adult should be released. A copy of that attachment and notice of such hearing shall be served on any person in whose actual care, custody and control such incapacitated vulnerable adult is found. If further remedial treatment is required, application shall be promptly made to the county commission or such other proper tribunal for appropriate relief: Provided, That the commitment for further remedial treatment may be continued until proceedings for such appropriate relief be concluded: Provided, however, That application for release from such remedial treatment may be made and granted at any time that the emergency ceases.
§9-6-6. Payment and termination of payment for services to incapacitated a vulnerable adult.
If any incapacitated vulnerable adult (1) requires and is granted remedial treatment for an emergency or the department determines that an incapacitated a vulnerable adult is (2) abused, or (3) neglected, or financially exploited the department may pay any assistance granted for the use and benefit of such incapacitated vulnerable adult to the person actually providing care for such adult, and terminate payments to any person alleged or shown to have abused, or neglected or financially exploited such incapacitated vulnerable adult, or to whom such payments were made prior to such remedial treatment, for so long as such remedial treatment continues, or until such abuse, or neglect or financial exploitation is abated, and such incapacitated vulnerable adult continues to be in the immediate care, custody and control of such person.
§9-6-7. Comprehensive system of adult protective services; compulsory assistance prohibited.
The department shall develop a plan for a comprehensive system of adult protective services including social casework, medical and psychiatric services, home care, day care, counseling, research and others to achieve the goals of this article.
It shall offer such services as are available and appropriate in the circumstances to persons who, other than for compensation, have or intend to have the actual, physical custody and control of an incapacitated a vulnerable adult and to such incapacitated vulnerable adults or to adults who may request and be entitled to such protective services: Provided, That except as expressly provided in this article, the department may not directly or indirectly compel the acceptance of such services by any person or discriminate against a person who refuses such services
§9-6-8. Confidentiality of records.
(a) Except as otherwise provided in this section, all records of the department, state and regional long-term care ombudsmen, nursing home or facility administrators, the Office of Health Facility Licensure and Certification, and all protective services agencies concerning an adult or facility resident under this article are confidential and may not be released, except in accordance with the provisions of section 11 of this article.
(b) Unless the adult
concerned is receiving adult protective services or unless there are pending
proceedings with regard to the adult, the records maintained by the adult
protective services agency shall be destroyed
thirty 30 years
following their preparation.
(c) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, all records concerning reports of abuse, neglect or financial exploitation of a vulnerable adult, including all records generated as a result of such reports, may be made available to:
(1) Employees or agents of the department who need access to the records for official business;
(2) Any law-enforcement agency investigating a report of known or suspected abuse, neglect or financial exploitation of a vulnerable adult;
(3) The prosecuting attorney of the judicial circuit in which the vulnerable adult resides or in which the alleged abuse, neglect or financial exploitation occurred;
(4) A circuit court or the Supreme Court of Appeals subpoenaing the records. The court shall, before permitting use of the records in connection with any court proceeding, review the records for relevancy and materiality to the issues in the proceeding. The court may issue an order to limit the examination and use of the records or any part of the record;
(5) A grand jury, by subpoena, upon its determination that access to the records is necessary in the conduct of its official business;
(6) The recognized protection and advocacy agency for the disabled of the State of West Virginia to the extent permitted by federal laws;
(7) The victim; and
(8) The victim’s legal representative, unless he or she is the subject of an investigation under this article.
(d) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, summaries concerning substantiated investigative reports of abuse, neglect or financial exploitation of adults may be made available to:
(1) Any person who the department has determined to have
abused, neglected or financially exploited the victim.
(e) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, summaries concerning substantiated and unsubstantiated investigative reports of abuse, neglect or financial exploitation of adults may be made available to:
(2) (1) Any appropriate official of the state or regional long-term care ombudsman investigating a report of known or suspected abuse, neglect or financial exploitation of a vulnerable adult;
(3) (2) Any person engaged in bona fide research or auditing, as defined by the department. However, information identifying the subjects of the report may not be made available to the researcher;
(4) (3) Employees or agents of an agency of another state that has jurisdiction to investigate known or suspected abuse, neglect or exploitation of vulnerable adults;
(5) (4) A professional person when the information is necessary for the diagnosis and treatment of, and service delivery to, a vulnerable adult; and
(6) (5) A department administrative hearing officer when the hearing officer determines the information is necessary for the determination of an issue before the officer.
(e) (f) The identity of any person reporting abuse, neglect or financial exploitation of a vulnerable adult may not be released, without that person’s written consent, to any person other than employees of the department responsible for protective services or the appropriate prosecuting attorney or law-enforcement agency. This subsection grants protection only for the person who reported the abuse, neglect or financial exploitation and protects only the fact that the person is the reporter. This subsection does not prohibit the subpoena of a person reporting the abuse, neglect or exploitation when deemed necessary by the prosecuting attorney or the department to protect a vulnerable adult who is the subject of a report, if the fact that the person made the report is not disclosed.
§9-6-9. Mandatory reporting of incidences of abuse, neglect, financial exploitation or emergency situation.
(a) If any medical, dental or mental health professional, Christian Science practitioner, religious healer, social service worker, law-enforcement officer, humane officer, state or regional ombudsman or any employee of any nursing home or other residential facility, or any employee of a financial institution has reasonable cause to believe that an incapacitated a vulnerable adult or facility resident is or has been neglected, abused, financially exploited or placed in an emergency situation, or if such person observes an incapacitated a vulnerable adult or facility resident being subjected to conditions that are likely to result in abuse, neglect, financial exploitation or an emergency situation, the person shall immediately report the circumstances pursuant to the provisions of section 11 of this article: Provided, That nothing in this article is intended to prevent individuals from reporting on their own behalf.
(b) In addition to those persons and officials specifically required to report situations involving suspected abuse, or neglect or financial exploitation of an incapacitated a vulnerable adult or facility resident or the existence of an emergency situation, any other person may make such a report.
(c) The secretary shall develop a form for the filing of written complaints, as provided by section eleven of this article, and provide these forms to all nursing homes or other residential facilities, hospitals, ombudsmen and adult protective service agencies in this state. The forms shall be designed to protect the identity of the complainant, if desired, and to facilitate the prompt filing of complaints.
(d) (c) The Department of Health and Human Resources shall develop and implement a procedure to notify any person mandated to report suspected abuse and neglect of an incapacitated a vulnerable adult or facility resident of whether an investigation into the reported suspected abuse, or neglect or financial exploitation has been initiated and when the investigation is completed.
(d) Financial institutions and their employees, as defined by §31A-2A-1 of this code and as permitted by §31A-2A-4(13) of this code, others engaged in financially related activities, as defined by §31A-8C-1 of this code, caregivers, relatives and other concerned persons are permitted to report suspected cases of financial exploitation to state or federal law-enforcement authorities, the county prosecuting attorney and to the Department of Health and Human Resources, Adult Protective Services Division or Medicaid Fraud Division, as appropriate. Public officers and employees are required to report suspected cases of financial exploitation to the appropriate entities as stated above. The requisite agencies shall investigate or cause the investigation of the allegations.
(e) When financial exploitation is suspected, and to the extent permitted by federal law, financial institutions and their employees or other business entities required by federal law or regulation to file suspicious activity reports and currency transaction reports shall also be permitted to disclose suspicious activity reports or currency transaction reports to Adult Protective Services in the county in which the transactions underlying the suspicious activity reports or currency transaction reports occurred.
§9-6-10. Mandatory reporting to medical examiner or coroner; postmortem investigation.
(a) Any person or official who is required under section nine of this article to report cases of suspected abuse, or neglect or financial exploitation and who has probable cause to believe that an incapacitated a vulnerable adult or facility resident has died as a result of abuse or neglect shall report that fact to the appropriate medical examiner or coroner.
(b) Upon the receipt of such a report, the medical examiner or coroner shall cause an investigation to be made and shall report the findings to the local law-enforcement agency, the local prosecuting attorney, the department’s local adult protective services agency, and, if the institution making a report is a hospital, nursing home or other residential facility, to the administrator of the facility, the state and regional long-term care ombudsman and the Office of Health Facility Licensure and Certification.
§9-6-11. Reporting procedures.
(a) A report of neglect, or abuse or financial exploitation of an incapacitated a vulnerable adult or facility resident or of an emergency situation involving such an adult shall be made immediately, and not more than 48 hours after suspecting abuse, neglect or financial exploitation, to the department’s adult protective services agency by a method established by the department. Provided, That if the method for reporting is web-based, the Department of Health and Human Resources shall maintain a system for addressing emergency situations that require immediate attention and shall be followed by a written report by the complainant or the receiving agency within 48 hours. The department shall, upon receiving any such report, take such action as may be appropriate and shall maintain a record thereof. The department shall receive telephonic reports on its 24-hour, seven-day-a-week, toll-free number established to receive calls reporting cases of suspected or known adult abuse or neglect.
(b) A copy of any report of abuse, neglect, financial exploitation or emergency situation shall be immediately filed with the following agencies:
(1) The Department of Health and Human Resources;
(2) The appropriate law-enforcement agency and the prosecuting attorney, if necessary; or
(3) In case of a death, to the appropriate medical examiner or coroner’s office.
(c) If the person who is alleged to be abused, or neglected or financially exploited is a resident of a nursing home or other residential facility, a copy of the report shall also be filed with the state or regional ombudsman and the administrator of the nursing home or facility.
(d) The department shall omit from such report in the first instance, the name of the person making a report, when requested by such person.
(e) (d) Reports of known or suspected institutional abuse, or neglect or financial exploitation of an incapacitated a vulnerable adult or facility resident or the existence of an emergency situation in an institution, nursing home or other residential facility shall be made, received and investigated in the same manner as other reports provided for in this article. In the case of a report regarding an institution, nursing home or residential facility, the department shall immediately cause an investigation to be conducted.
(f) Upon receipt of a written complaint, the department shall coordinate an investigation pursuant to § 9–6–3 of this code and applicable state or federal laws, rules, or regulations.
§9-6-13. Abrogation of privileged communications.
The privileged status of communications between husband and wife, and with any person required to make reports under sections nine or 10 of this article, except communications between an attorney and his client, is hereby abrogated in circumstances involving suspected or known abuse, or neglect or financial exploitation of an incapacitated a vulnerable adult or where the incapacitated adult is in a known or suspected emergency situation.
§9-6-16. Compelling production of information.
(a)(1) In order to obtain information regarding the location of an adult who is the subject of an allegation of abuse, or neglect or financial exploitation the Secretary of the Department of Health and Human Resources may serve, by certified mail, personal service or facsimile, an administrative subpoena on any corporation, partnership, business or organization for production of information leading to determining the location of the adult. In case of disobedience to the subpoena, Adult Protective Services may petition any circuit court to require the production of information.
(2) In case of disobedience to the subpoena, in compelling the production of information the secretary may invoke the aid of: (A) The circuit court with jurisdiction over the served party, if the entity served is located in this state; or (B) the circuit court of the county in which the local protective services office conducting the investigation is located, if the entity served is a nonresident.
(3) A circuit court shall not enforce an administrative subpoena unless it finds that: (A) The investigation is one the division of Adult Protective Services is authorized to make and is being conducted pursuant to a legitimate purpose; (B) the inquiry is relevant to that purpose; (C) the inquiry is not too broad or indefinite; (D) the information sought is not already in the possession of the division of Adult Protective Services; and (E) any administrative steps required by law have been followed.
(4) If circumstances arise where the secretary, or his or her designee, determines it necessary to compel an individual to provide information regarding the location of an adult who is the subject of an allegation of abuse, or neglect or financial exploitation, the secretary, or his or her designee, may seek a subpoena from the circuit court with jurisdiction over the individual from whom the information is sought.
NOTE: The purpose of this bill is to add new definitions, replace archaic language, provide for the sharing of information for the protections of vulnerable adults and for providing Adult Protective Services with best practices in investigating allegations of financial exploitation.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.