HB4591 H S AM #1
Wilkinson 3909
The Committee on Seniors, Children & Families moved to amend the bill on page one, after the enacting clause, 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.
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 susceptible 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 susceptible 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 susceptible adult or self-neglect by a susceptible adult, including
the use of undue influence by a caregiver to cause self-neglect.
(4) (5) “Incapacitated Susceptible
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 susceptible 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 susceptible 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 susceptible
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
susceptible 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 subdivision (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 susceptible 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 susceptible 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 susceptibility of the victim. Evidence of susceptibility 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 susceptibility.
(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 susceptible 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 susceptible 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 susceptible
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 susceptible 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 susceptible 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 susceptible adult, for
injunctive relief, including a preliminary injunction, to restrain and abate
any abuse or neglect of an
incapacitated a susceptible
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 susceptible 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, That 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 susceptible 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: Provided, 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
article.
§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 susceptible adult is in an emergency situation and
that the person or persons having the immediate care, custody and control of
such incapacitated susceptible adult refuses to take necessary
steps to alleviate such emergency, or that such incapacitated susceptible
adult is without the actual care, custody, and control of any persons, it may
issue an order of attachment for such incapacitated susceptible
adult and direct that the peace officer executing the same deliver such incapacitated
susceptible 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 susceptible
person, notwithstanding the residence therein of other persons.
If
any employee or officer of the department shall by direct observation of an
incapacitated a susceptible adult not in the immediate care, custody
or control of another have reasonable cause to believe that such incapacitated
susceptible 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 susceptible adult
for immediate remedial treatment to reduce or avoid the risk of death or serious
injury.
Immediately
upon delivery of any incapacitated susceptible 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 susceptible 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 susceptible
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
susceptible 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 susceptible
adult.
If
any incapacitated susceptible adult (1) requires and is
granted remedial treatment for an emergency or the department determines that an
incapacitated a susceptible 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 susceptible
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 susceptible 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
susceptible 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 susceptible
adult and to such incapacitated susceptible 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 susceptible
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 susceptible adult;
(3) The prosecuting attorney of the judicial circuit in which the susceptible 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 susceptible
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 susceptible adults;
(5) (4) A professional person when
the information is necessary for the diagnosis and treatment of, and service
delivery to, a susceptible 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 susceptible
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 susceptible 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
susceptible 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 susceptible 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 susceptible 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 susceptible 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 susceptible
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 susceptible 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 susceptible 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 susceptible 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 susceptible 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.
Adopted
Rejected