H. B. 4390
(By Delegates Compton, Hutchins, Leach, Hatfield,
Houston, Perdue and Romine)
(Originating in the House Committee on
Health and Human Resources then Finance)
[February 3, 2000]
A BILL to amend and reenact sections one, two, three, eight, nine,
ten, eleven and twelve, article six, chapter nine of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended; and to amend and reenact sections two and eight,
article five-c, chapter sixteen of said code, all relating to
reporting requirements for complaints of abuse, neglect and
exploitation of incapacitated adults or residents in nursing
homes or facilities; development of a coordinated
investigation system; prohibiting discrimination against
persons reporting incidents of abuse, neglect or exploitation;
and making technical changes.
Be it enacted by the Legislature of West Virginia:
That sections one, two, three, eight, nine, ten, eleven and
twelve, article six, chapter nine of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and sections two and
eight, article five-c, chapter sixteen of said code be amended and reenacted to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 6. SOCIAL SERVICES FOR ADULTS.
§9-6-1. Definitions.
The following words and terms, when used in this article,
shall have the same meaning hereinafter ascribed to them unless the
context clearly indicates a different meaning:
(1) "Adult protective services agency" shall means any public
or nonprofit private agency, corporation, board or organization
furnishing protective services to adults;
(2) "Abuse" shall means the infliction or threat to inflict
psychological or physical pain or injury on or the imprisonment of
any incapacitated adult or resident of a nursing home or nursing
facility;
(3) "Neglect" shall means (i) (A) the failure to provide the
necessities of life to an incapacitated adult or resident of a
nursing home or nursing facility with intent to coerce or
physically harm such incapacitated adult or resident (ii) (B) the
unlawful expenditure or willful dissipation of the funds or other
assets owned or paid to or for the benefit of an incapacitated
adult or resident;
(4) "Incapacitated adult" shall means any person who by reason
of physical, mental or other infirmity is unable to independently carry on the daily activities of life necessary to sustaining life
and reasonable health;
(5) "Emergency" or "emergency situation" shall means a
situation or set of circumstances which presents a substantial and
immediate risk of death or serious injury to an incapacitated
adult.
(6) "Exploitation" means taking unjust advantage of an
incapacitated adult or resident, including, but not limited to, the
theft, misappropriation, destruction or damage of personal
property.
(7) "Guardian" means a person lawfully invested with the
power and charged with the duty of taking care of another person
and managing the property and rights of another person who, for
some peculiarity of status or defect of age, understanding or self
control is considered incapable of administering his or her own
affairs.
(8) "Nursing home" or "facility" means any institution,
residence or place, or any part or unit thereof, however named, in
this state which is advertised, offered, maintained or operated by
the ownership or management, whether for a consideration or not,
for the express or implied purpose of providing accommodations and
care, for a period of more than twenty-four hours, for four or more
persons who are ill or otherwise incapacitated and in need of extensive, ongoing nursing care due to physical or mental
impairment or which provides services for the rehabilitation of
persons who are convalescing from illness or incapacitation:
Provided, That the care or treatment in a household, whether for
compensation or not, of any person related by blood or marriage,
within the degree of consanguinity of second cousin to the head of
the household, or his or her spouse, may not be deemed to
constitute a nursing home within the meaning of this article:
Provided, however, That nothing contained in this article applies
to nursing homes operated by the federal government; or extended
care facilities operated in conjunction with a hospital; or
institutions operated for the treatment and care of alcoholic
patients; or offices of physicians; or hotels, boarding homes or
other similar places that furnish to their guests only room and
board; or to homes or institutions operated by fraternal orders
pursuant to article three, chapter thirty-five of this code.
(9) "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 state commission on
aging and meets the qualifications set forth in section seven,
article five-l, chapter sixteen of this code;
(10) "Resident" means an individual living in a nursing home
or facility.
(11) "State long-term care ombudsman" means an individual who
meets the qualifications of section five, article five-l, chapter
sixteen of this code and who is employed by the state bureau of
senior services to implement the state long-term care ombudsman
program.
(12) "Secretary" means the secretary of the department of
health and human resources.
§9-6-2. Adult protective services; rules and regulations;
organization and duties.
(a) There is hereby established and continued within the
department of health and human services resources the system of
adult protective services heretofore existing. The commissioner
shall by regulation prescribe the organization and duties of and
procedures which shall be used by the department to effectuate the
purposes of this article, which regulations may be amended and
supplemented from time to time.
(b) The secretary shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a 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 commissioner secretary shall design and arrange such
regulations rules to attain, or move toward the attainment of the following goals, to the extent that the commissioner believes
feasible under the provisions of this article within the state
appropriations and other funds available:
(1) Assisting adults who are abused, neglected 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, and abuse
and exploitation 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
incapacitated adults to institutional care only where other
available services are inappropriate; and
(5) Providing services and monitoring to adults in
institutions designed to assist adults in returning to community
settings;
(6) Preventing, reducing and eliminating abuse, neglect and
exploitation of residents in nursing homes or facilities; and
(7) Coordinating investigations of complaints of abuse,
neglect or exploitation of adults and residents among the
department of health and human resources, the adult protective
services system, the state and regional long-term care ombudsman, administrators of nursing homes or facilities, the office of
health facility licensure and certification, the prosecutor, if
necessary, and any other appropriate state or federal agencies.
(d) Such regulations 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 department may
cooperate with any adult protective
services agency and may at any time establish or increase, and
reduce or terminate any assistance granted to or through any
adult protective services agency: Provided, That no reduction or
termination shall be made unless the commissioner, in his
discretion, first determines that such protective services agency
unreasonably fails or refuses to use or apply such assistance in
a manner which promotes the goals established under section two
of this article: Provided, however, That assistance granted to
a recipient client of the department shall not be withheld or
reduced but shall instead be paid in whole or in part to some
other protective services agency, which the commissioner finds
will better serve the interests of the recipient client or to the
person having actual custody of such recipient client.
In the case of a refusal to establish, maintain, increase, reduce or terminate any assistance to a protective services
agency client or person having custody, such agency, client or
person may within thirty days thereof demand a hearing on such
failure which hearing shall be conducted in accord with the
provisions of law relating to hearings upon a refusal of
assistance by the department in any other case and shall include
the right of appeal to an appropriate circuit court as in such
cases of refusal of assistance.
§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 incapacitated adult or resident
under this article shall be confidential and shall not be released, except in accordance with the provisions of section
eleven of this article.
(b) Unless the adult concerned is receiving adult
protective services or unless there are pending proceedings with
regard to such adult, the records maintained by the adult
protective services agency shall be destroyed two years following
their preparation. A circuit court or the supreme court of
appeals may subpoena such records, but shall, before permitting
their use in connection with any court proceeding, review the
same for relevancy and materiality to the issues in the
proceeding, and may issue such order to limit the examination and
use of such records or any part thereof, having due regard for
the purposes of this article and the requirements of the
litigation as shall be just.
§9-6-9. Mandatory reporting of incidences of abuse, neglect or
emergency situation.
(a) If any medical, dental or mental health professional,
christian science practitioner, religious healer, social service
worker, peace officer, or law-enforcement officer or any employee
of any nursing home or nursing facility has reasonable cause to
believe that an incapacitated adult or resident is neglected,
abused, exploited or placed in an emergency situation, or if such
person observes an incapacitated adult or resident being
subjected to conditions that are likely to result in abuse, neglect, exploitation or an emergency situation, the person shall
immediately report the circumstances or cause a report to be made
to the department's local protective services agency pursuant to
the provisions of section eleven 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 exploitation of an incapacitated adult or resident or
the existence of an emergency situation, any other person may
make such a report.
(c) The department shall develop and design a multi-part
form for the filing of complaints as required by this section and
provide the forms to all nursing homes or nursing 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 filing of
the complaint with each agency.
§9-6-10. Mandatory reporting to medical examiner or coroner;
postmortem investigation.
Any person or official who is required under section nine of
this article to report cases of suspected abuse or neglect and
who has probable cause to believe that an incapacitated adult or
resident has died as a result of abuse or neglect shall report that fact to the appropriate medical examiner or coroner. 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 family or guardian of the deceased, the local
law-enforcement agency, the local prosecuting attorney, the
department's local adult protective services agency, the state
and regional long-term care ombudsman, the office of health
facility licensure and certification, and, if the institution
making a report is a hospital, nursing home or nursing facility,
to the administrator of the hospital, nursing home or nursing
facility.
§9-6-11. Reporting procedures.
(a) A report of neglect, or abuse or exploitation of an
incapacitated adult or resident or of an emergency situation
involving such an adult a person shall be made immediately by
telephone to the department's local adult protective services
agency and shall be followed by a written report within forty-
eight hours. The written report shall be on the multi-part form
provided by the department. 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 such
telephonic reports on its twenty-four 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, exploitation or
emergency situation shall be made available immediately filed
with the following agencies:
(1) The department of health and human services;
(2) The local adult protective services agency;
(3) If the person who is alleged to be abused, neglected or
exploited is a resident of a nursing home or facility, the state
or regional ombudsman, the administrator of the nursing home or
facility and the office of health facility licensure and
certification;
(4) The family or guardian of the person alleged to be
abused, neglected or exploited;
(5)
to The appropriate law-enforcement agency and the
prosecuting attorney, if necessary, or
(6) In case of a death, to the appropriate medical examiner
or coroner's office: Provided, That
(c) The department shall omit from such report in the first
instance, the name of the person making a report, when requested
by such person.
(d) Reports of known or suspected institutional abuse, or
neglect or exploitation of an incapacitated adult or resident or
the existence of an emergency situation in an institution or
nursing home or 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 or nursing home
or facility, the department shall immediately cause an
investigation of the institution, nursing home or nursing
facility to be conducted.
(e) Whenever a complaint is filed with the adult protective
services agency, the agency shall forward a copy of the complaint
to the family, guardian or medical power or attorney of the adult
or resident affected, and shall provide the family, guardian or
medical power of attorney with copies of any subsequent reports
arising out of the complaint and investigation.
(f) Upon receipt of their respective copies of a written
complaint, each department, agency or person shall immediately
conduct an investigation of the complaint pursuant to the
applicable state or federal laws, rules or regulations.
§9-6-12. Reporting person's immunity from liability.
(a) Any person who in good faith makes or causes to be made
any report permitted or required by this article shall be immune
from any civil or criminal liability which might otherwise arise
solely out of making such report.
(b) No nursing home may discharge or in any manner
discriminate against any resident, legal representative or
employee for the reason that the resident, legal representative
or employee has filed a complaint or participated in any
proceeding specified in this article.
(c) Violation of this prohibition by any nursing home
constitutes ground for the suspension or revocation of the
license of the nursing home as provided in section eleven,
article five-c, chapter sixteen of this code.
(d) Any type of discriminatory treatment of a resident,
legal representative or employee by whom, or upon whose behalf,
a complaint has been submitted or any proceeding instituted under
this article within one hundred eighty days of the filing of the
complaint or the institution of such action, shall raise a
rebuttable presumption that such action was taken by the nursing
home in retaliation for such complaint or action.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 5C. NURSING HOMES.
§16-5C-2. Definitions.
(1) As used in this article, unless a different meaning
appears from the context:
(a) "Deficiency" means a nursing home's failure to meet the
requirements specified in article five-c, chapter sixteen of this
code and rules promulgated thereunder.
(b) "Director" means the secretary of the department of
health and human resources or his or her designee.
(c) "Household" means a private home or residence which is
separate from or unattached to a nursing home.
(d) "Immediate jeopardy" means a situation in which the nursing home's noncompliance with one or more of the provisions
of this article or rules promulgated thereunder has caused or is
likely to cause serious harm, impairment or death to a resident.
(e) "Nursing home" or "facility" means any institution,
residence or place, or any part or unit thereof, however named,
in this state which is advertised, offered, maintained or
operated by the ownership or management, whether for a
consideration or not, for the express or implied purpose of
providing accommodations and care, for a period of more than
twenty-four hours, for four or more persons who are ill or
otherwise incapacitated and in need of extensive, ongoing nursing
care due to physical or mental impairment or which provides
services for the rehabilitation of persons who are convalescing
from illness or incapacitation: Provided, That the care or
treatment in a household, whether for compensation or not, of any
person related by blood or marriage, within the degree of
consanguinity of second cousin to the head of the household, or
his or her spouse, may not be deemed to constitute a nursing home
within the meaning of this article: Provided, however, That
nothing contained in this article applies to nursing homes
operated by the federal government; or extended care facilities
operated in conjunction with a hospital; or institutions operated
for the treatment and care of alcoholic patients; or offices of
physicians; or hotels, boarding homes or other similar places that furnish to their guests only room and board; or to homes or
asylums institutions operated by fraternal orders pursuant to
article three, chapter thirty-five of this code.
(f) "Nursing care" means those procedures commonly employed
in providing for the physical, emotional and rehabilitational
needs of the ill or otherwise incapacitated which require
technical skills and knowledge beyond that which the untrained
person possesses, including, but not limited to, such procedures
as: Irrigations, catheterization, special procedure contributing
to rehabilitation, and administration of medication by any method
which involves a level of complexity and skill in administration
not possessed by the untrained person.
(g) "Resident" means an individual living in a nursing home.
(h) "Review organization" means any committee or
organization engaging in peer review or quality assurance,
including, but not limited to, a medical audit committee, a
health insurance review committee, a professional health service
plan review committee or organization, a dental review committee,
a physician's advisory committee, a podiatry advisory committee,
a nursing advisory committee, any committee or organization
established pursuant to a medical assistance program, any
committee or organization established or required under state or
federal statutes, rules or regulations, and any committee
established by one or more state or local professional societies or institutes, to gather and review information relating to the
care and treatment of residents for the purposes of: (1)
Evaluating and improving the quality of health care rendered; (2)
reducing morbidity or mortality; or (3) establishing and
enforcing guidelines designed to keep within reasonable bounds
the cost of health care.
(i) "Sponsor" means the person or agency legally responsible
for the welfare and support of a resident.
(j) "Person" means an individual and every form of
organization, whether incorporated or unincorporated, including
any partnership, corporation, trust, association or political
subdivision of the state.
(k) "Substantial compliance" means a level of compliance
with the rules such that no deficiencies exist or such that
identified deficiencies pose no greater risk to resident health
or safety than the potential for causing minimal harm.
(l) "Exploitation" means taking unjust advantage of an
incapacitated adult or resident, including, but not limited to,
the theft, misappropriation, destruction or damage of personal
property.
(m) "Guardian" means a person lawfully invested with the
power and charged with the duty of taking care of another person
and managing the property and rights of another person who, for
some peculiarity of status or defect of age, understanding or
self control is considered incapable of administering his or her
own affairs.
(n) "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 state commission on
aging and meets the qualifications set forth in section seven,
article five-l, chapter sixteen of this code;
(o) "State long-term care ombudsman" means an individual
who meets the qualifications of section five, article five-l,
chapter sixteen of this code and who is employed by the state
bureau of senior services to implement the state long-term care
ombudsman program.
(2) The director may define in the rules any term used
herein which is not expressly defined.
§16-5C-8. Investigation of complaints.
(a) The director shall establish rules for prompt
investigation of all complaints of alleged abuse, neglect or
exploitation of residents or other violations by nursing homes of
applicable requirements of state law or rules: Provided, That the
director, in his or her discretion, may refuse to investigate ,
except for such complaints that the director determines are
willfully intended to harass a licensee or are without any
reasonable basis.
(b) Such procedures shall include provisions for ensuring
the confidentiality of the complainant and for promptly informing
the complainant, and administrator of the nursing home involved,
the local adult protective services agency, the state or regional
ombudsman, the office of health facility licensure and certification and the family or guardian of the resident of the
results of the investigation.
(c) If, after it's the investigation, the director
determines that the complaint has merit, the director shall take
appropriate disciplinary action and shall advise any injured
party of the possibility of a civil remedy.
(d) No nursing home may discharge or in any manner
discriminate against any resident, legal representative or
employee for the reason that the resident, legal representative
or employee has filed a complaint or participated in any
proceeding specified in this article. Violation of this
prohibition by any nursing home constitutes ground for the
suspension or revocation of the license of the nursing home as
provided in section eleven of this article. Any type of
discriminatory treatment of a resident, legal representative or
employee by whom, or upon whose behalf, a complaint has been
submitted to the director, or any proceeding instituted under
this article, within one hundred twenty eighty days of the filing
of the complaint or the institution of such action, shall raise
a rebuttable presumption that such action was taken by the
nursing home in retaliation for such complaint or action.
(e) The director shall implement a system by which
investigations of complaints of abuse, neglect or exploitation of
incapacitated adults and residents are coordinated among the
department of health, the adult protective services system, the
state and regional long-term care ombudsman, administrators of nursing homes and facilities, the office of health facility
licensure and certification, the prosecutor, if necessary, and
any other appropriate state or federal agencies.
FINANCE COMMITTEE AMENDMENT
On page two, line two, following the enacting section, by
striking out the remainder of the bill and inserting in lieu
thereof the following:
ARTICLE 6. SOCIAL SERVICES FOR ADULTS.
§9-6-1. Definitions.
The following words and terms, when used in this article,
shall have the same meaning hereinafter ascribed to them unless
the context clearly indicates a different meaning:
(1) "Adult protective services agency"
shall mean means
any public or nonprofit private agency, corporation, board or
organization furnishing protective services to adults;
(2) "Abuse"
shall mean means the infliction or threat to
inflict physical pain or injury on or the imprisonment of any
incapacitated adult
or resident of a nursing home or nursing
facility;
(3) "Neglect"
shall mean means (i) (A) the failure to
provide the necessities of life to an incapacitated adult
or
resident of a nursing home or nursing facility with intent to
coerce or physically harm
such the incapacitated adult or
resident; (ii) (B) the unlawful expenditure or willful
dissipation of the funds or other assets owned or paid to or
for the benefit of an incapacitated adult
or resident;
(4) "Incapacitated adult"
shall mean means any person who
by reason of physical, mental or other infirmity is unable to
independently carry on the daily activities of life necessary
to sustaining life and reasonable health;
(5) "Emergency" or "emergency situation"
shall mean means
a situation or set of circumstances which presents a
substantial and immediate risk of death or serious injury to an
incapacitated adult.
(6) "Exploitation" means taking unjust advantage of an
incapacitated adult or resident, including, but not limited to,
the theft, misappropriation, destruction or damage of personal
property.
(7) "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 any other duly appointed person.
(8) "Nursing home" or "facility" means any institution,
residence or place, or any part or unit thereof, that is
subject to the provisions of article five-c, chapter sixteen of
this code.
(9) "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
section seven, article five-l, chapter sixteen of this code;
(10) "Resident" means an individual living in a nursing
home or facility.
(11) "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) "State long-term care ombudsman" means an individual
who meets the qualifications of section five, article five-l,
chapter sixteen of this code and who is employed by the state
bureau for senior services to implement the state long-term
care ombudsman program.
(13) "Secretary" means the secretary of the department of
health and human resources.
§9-6-2. Adult protective services; rules and regulations;
organization and duties.
(a) There is hereby established and continued within the
department of
health and human
services resources the system of
adult protective services heretofore existing.
The commissioner
shall by regulation prescribe the organization and duties of and procedures which shall be used by the department to
effectuate the purposes of this article, which regulations may
be amended and supplemented from time to time.
(b) The secretary shall propose rules for legislative
approval in accordance with the provisions of article three,
chapter twenty-nine-a 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
commissioner secretary shall design and arrange
such
regulations rules to attain, or move toward the attainment
of the following goals, to the extent that the
commissioner
secretary believes feasible under the provisions of this
article within the state appropriations and other funds
available:
(1) Assisting adults who are abused, neglected 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
, and
abuse
and exploitation 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
incapacitated adults to institutional care only where other
available services are inappropriate;
and
(5) Providing services and monitoring to adults in
institutions designed to assist adults in returning to
community settings
;
(6) Preventing, reducing and eliminating abuse, neglect
and exploitation of residents in nursing homes or facilities;
and
(7) Coordinating investigation activities for complaints
of abuse, neglect or exploitation of adults and residents
among the department of health and human resources, the adult
protective services system, the state and regional long-term
care ombudsman, administrators of nursing homes or facilities,
the office of health facility licensure and certification, the
prosecutor, if necessary, and any other appropriate state or federal agencies.
Such regulations
(d) The rules proposed by the secretary shall
provide:
(1) 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
; and
(2) Specify that investigations of complaints of
exploitation of nursing home residents shall be conducted
primarily by the administrator of the nursing home involved and
the state or regional ombudsmen.
§9-6-3. Cooperation among agencies; termination and reduction
of assistance by commissioner.
The department may cooperate with any adult protective
services agency and may at any time establish or increase, and
reduce or terminate any assistance granted to or through any
adult protective services agency: Provided, That no reduction
or termination shall be made unless the commissioner, in his
discretion, first determines that such protective services
agency unreasonably fails or refuses to use or apply such
assistance in a manner which promotes the goals established
under section two of this article: Provided, however, That
assistance granted to a recipient client of the department
shall not be withheld or reduced but shall instead be paid in
whole or in part to some other protective services agency,
which the commissioner finds will better serve the interests of
the recipient client or to the person having actual custody of
such recipient client.
In the case of a refusal to establish, maintain, increase,
reduce or terminate any assistance to a protective services
agency client or person having custody, such agency, client or
person may within thirty days thereof demand a hearing on such
failure which hearing shall be conducted in accord with the
provisions of law relating to hearings upon a refusal of
assistance by the department in any other case and shall
include the right of appeal to an appropriate circuit court as
in such cases of refusal of assistance.
The department, the adult protective services system, the
state and regional long-term care ombudsmen, administrators of
nursing homes or facilities, the office of health facility
licensure and certification, county prosecutors and any other
applicable state or federal agency shall coordinate and
cooperate among each other for the purposes of observing,
reporting, investigating and acting upon complaints of abuse,
neglect or exploitation of any incapacitated adult or resident
in this state.
§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 resident
under this article shall be confidential and shall not be
released, except in accordance with the provisions of section
eleven of this article.
(b) Unless the adult concerned is receiving adult
protective services or unless there are pending proceedings
with regard to
such the adult, the records
maintained by the
adult protective services agency shall be destroyed two years
following their preparation. A circuit court or the supreme
court of appeals may subpoena such records, but shall, before
permitting their use in connection with any court proceeding,
review the same for relevancy and materiality to the issues in
the proceeding, and may issue such order to limit the
examination and use of such records or any part thereof, having
due regard for the purposes of this article and the
requirements of the litigation as shall be just.
§9-6-9. Mandatory reporting of incidences of abuse, neglect or
emergency situation.
(a) If any medical, dental or mental health professional,
christian science practitioner, religious healer, social
service worker,
peace officer, or law-enforcement officer
,
state or regional ombudsman or any employee of any nursing home
or nursing facility has reasonable cause to believe that an
incapacitated adult
or resident is neglected, abused
, exploited
or
placed in an emergency situation, or if such person observes
an incapacitated adult
or resident being subjected to
conditions that are likely to result in abuse, neglect
,
exploitation or an emergency situation, the person shall
immediately report the circumstances
or cause a report to be
made to the department's local protective services agency
pursuant to the provisions of section eleven 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 exploitation of an incapacitated adult
or
resident or the existence of an emergency situation, any other
person may make such a report.
(c) The department shall develop and design a multi-part
form for the filing of complaints as required by this section and provide the forms to all nursing homes or nursing
facilities, hospitals, ombudsmen, and adult protective service
agencies in this state. All complaints of abuse, neglect or
exploitation shall be made on the multi-part forms and
delivered by the complainant to the persons or agencies as
required by section eleven. The forms shall be designed to
protect the identity of the complainant, if desired, and to
facilitate the filing of the complaint with each agency.
§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 and who has probable cause to believe that an
incapacitated adult
or 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 nursing facility, to the
administrator of the hospital
, nursing home or nursing
facility, the state and regional long-term care ombudsman and
the office of health facility licensure and certification.
(c) Upon request, the medical examiner or coroner may
advise a responsible family member or the legal representative
of the decedent that an investigation has been made pursuant to
the provisions of this section: Provided, That nothing in this
section shall be construed to require the medical examiner or
coroner to reveal the results of such an investigation.
§9-6-11. Reporting procedures.
(a) A report of neglect
, or abuse
or exploitation of an
incapacitated adult
or resident or of an emergency situation
involving such
an adult a person shall be made immediately by
telephone to the department's local adult protective services
agency and shall be followed by a written report within forty-
eight hours.
The written report shall be filed by the
complainant on the multi-part form provided by the department.
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 such telephonic reports
on its twenty-four 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
, exploitation
or emergency situation shall be
made available immediately
to
the filed with the following agencies:
(1) The department of health and human services;
(2) The local adult protective services agency;
(3) If the person who is alleged to be abused, neglected
or exploited is a resident of a nursing home or facility, the
state or regional ombudsman, the administrator of the nursing
home or facility and the office of health facility licensure
and certification;
(4) The responsible family member or legal representative
of the person alleged to be abused, neglected or exploited;
(5) The appropriate law-enforcement agency and the
prosecuting attorney,
if necessary, or
in
(6) In case of a death, to the appropriate medical
examiner or coroner's office
: Provided, That the
(c) The department shall omit from such report in the
first instance, the name of the person making a report, when
requested by such person.
(d) Reports of known or suspected institutional abuse
, or
neglect
or exploitation of an incapacitated adult
or resident
or the existence of an emergency situation in an institution
or
nursing home or 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
or nursing home or facility, the department shall
immediately cause an investigation of the institution
, nursing
home or nursing facility to be conducted.
(e) Whenever a complaint is filed with the adult
protective services agency, the agency shall forward a copy of
the complaint to the responsible family member and legal
representative of the adult or resident affected, and shall
provide them with copies of any subsequent reports arising out
of the complaint and investigation.
(f) Upon receipt of their respective copies of a written
complaint, each department, agency or person shall conduct an
investigation of the complaint pursuant to the applicable state
or federal laws, rules or regulations.
§9-6-12. Reporting person's immunity from liability.
(a) Any person who in good faith makes or causes to be
made any report permitted or required by this article shall be
immune from any civil or criminal liability which might
otherwise arise solely out of making such report.
(b) No nursing home may discharge or in any manner
discriminate against any resident, legal representative or
employee for the reason that the resident, legal representative
or employee has filed a complaint or participated in any
proceeding specified in this article.
(c) Violation of this prohibition by any nursing home
constitutes ground for the suspension or revocation of the
license of the nursing home as provided in section eleven,
article five-c, chapter sixteen of this code.
(d) Any type of discriminatory treatment of a resident,
legal representative or employee by whom, or upon whose behalf,
a complaint has been submitted or any proceeding instituted
under this article within one hundred eighty days of the filing
of the complaint or the institution of such action, shall raise
a rebuttable presumption that such action was taken by the
nursing home in retaliation for such complaint or action."
FINANCE COMMITTEE TITLE AMENDMENT
H. B. 4390 -- "A Bill to amend and reenact sections one,
two, three, eight, nine, ten, eleven and twelve, article six,
chapter nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to reporting
requirements for complaints of abuse, neglect and exploitation of
incapacitated adults or residents in nursing homes or facilities;
development of a coordinated investigation system; prohibiting
discrimination against persons reporting incidents of abuse,
neglect or exploitation; and making technical changes."
Email
Webmaster | © 2024 West Virginia Legislature **
