HB2880 S H&HR AM #1 4-8
Dellinger 7965
The Committee on Health and Human Resources moved to amend the bill by striking out everything after the enacting clause and inserting in lieu thereof the following:
As used in the article:
"Critical incident" means an occurrence of any of the following:
(1) Self-harm or a suicide emergency;
(2) A restraint, seclusion, or emergency safety intervention occurring at the program whether medical attention is or is not required;
(3) A denial or unreasonable medical delay of required medical attention to the child in the program;
(4) An admittance or a transport of a child in the program to or from a medical facility;
(5) An incident or allegation of abuse or harm to a child while in the program;
(6) A use of force, coercion, or deception in transporting a child to or from the program, unless the program did not conduct or pay for the transport;
(7) A police report or investigation involving a child or an individual who has or had access to the program;
(8) A physical condition of the program's facility that jeopardizes the health, safety, or well-being of a child; or
(9) Any additional occurrence or condition that the Director defines as a critical incident.
"Director" means the director of the Office of Health Facility Licensure and Certification or his or her designee.
"Direct access" means that an individual has or likely will have person-to-person spoken or physical contact with or access to a program participant.
"Inspector General" means the Inspector General of the Office of the Inspector General as described in §16B-2-1 of this code, or his or her designee.
"License" means a written document issued by the department that the license holder has complied with this part and the applicable standards and rules for programs.
"Licensee" means the holder of a license issued by the department in accordance with the provisions of this article.
"Office of Health Facilities Licensure and Certification" means the West Virginia Office of Health Facility Licensure and Certification within the Office of the Inspector General.
"Person associated with the program" means any owner, partner, member, employee, or contractor providing professional or occupational services to a program.
"Program" means each location of a facility or program operated by a public or private entity that, with respect to one or more youth who are unrelated to the owner or operator of the facility or program, in a residential environment including, but not limited to:
(1) A program with a wilderness or outdoor experience, expedition, or intervention;
(2) A bootcamp experience or other experience designed to simulate characteristics of basic military training or correctional regimes; or
(3) An education or therapeutic boarding school.
The term does not include: recreational programs such as Boy Scouts, Girl Scouts, or 4-H clubs; organizations, boarding schools, or residential schools with a sole focus on academics; residential training or vocational programs with a sole focus on education and vocational training; youth camps with a focus on recreation and faith-related activities; an organization, boarding school, or residential school that is an adjunct ministry of a church; or any programs operated pursuant to §15-1B-24 of this code.
"Program participant" means any adolescent to whom services are being provided by the program.
The Inspector General shall designate the Director of the Office of Health Facilities Licensure and Certification to enforce the provisions of this article, except as otherwise stated.
No person, partnership, association, or corporation, or any local governmental unit or any division, department, board, or agency thereof may operate a program unless the operation has been approved and annually licensed by the director in accordance with the provisions of this article and the rules lawfully promulgated hereunder.
(a) The director shall require applicants and licensees to submit a set of fingerprints for each person associated with the program who has direct access to program participants for the purpose of conducting a criminal and child protection background check according to §16B-15-1 et seq. of this code.
(b) The director shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code that pertain to ensuring the health and safety of program participants, including:
(1) A procedure for a licensed program to report the use of a chemical, physical, mechanical, or environmental restraint or seclusion to the department within one business day after the day on which the use of the chemical, physical, mechanical, or environmental restraint or seclusion occurs;
(2) Guidelines for written policies and procedures of the licensed program, including policies and procedures on suicide prevention and for implementation of the requirements and restrictions in subsections (c) and (d) of this section;
(3) A procedure for the department to review and approve the licensed program's policies and procedures;
(4) A procedure for submitting a complaint about a licensed program to the department and law enforcement and a requirement that each licensed program publicly post information that describes how to submit a complaint about the licensed program to the department and law enforcement;
(5) Establish a licensure and renewal fee; and
(6) A procedure for responding to critical incidents.
(c) A licensed program may not:
(1) Use physical discipline or the threat of physical discipline as a punishment, deterrent, incentive, or to gain compliance;
(2) Deprive a youth of basic necessity or inherent right, including education;
(3) Admit a youth who is under the age approved in the licensure or has a condition not allowed to be treated under the licensure; or
(4) Sexually abuse, exploit, or harass an enrolled youth.
(d) A licensed program shall:
(1) Allow a parent or guardian to remove a youth from the licensed program; and
(2) Unless otherwise prohibited by law or court order, facilitate weekly confidential and unsupervised video communication between a youth and the youth's parents, guardians, or foster parents.
(e) A licensed program shall provide a fixed number telephone to the child abuse hotline operated by the Department of Human Services that is readily available to enrolled participants 24 hours a day.
The Inspector General shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. and §16B-22-3(b) of this code not in conflict with any provision of this article, as he or she finds necessary in order to ensure adequate care and accommodations for consumers of programs.
(a) The director, in consultation with the Inspector General, may suspend or revoke a license issued hereunder if the provisions of this article or of the rules are violated.
(b) Before any such license is suspended or revoked, written notice shall be given the licensee, stating the grounds of the complaint, and the date, time, and place set for the hearing on the complaint, which date may not be less than 30 days from the time notice is given. The notice shall be sent by registered mail to the licensee at the address where the program concerned is located. The licensee shall be entitled to be represented by legal counsel at the hearing.
(c) If a license is revoked as herein provided, a new application for a license shall be considered by the director, in consultation with the Inspector General, if, when, and after the conditions upon which revocation was based have been corrected and evidence of this fact has been furnished. A new license shall then be granted after proper inspection has been made and all provisions of this article and rules promulgated hereunder have been satisfied.
(d) All of the pertinent provisions of §29A-5-1 et seq. of this code shall apply to and govern any hearing authorized and required by the provisions of this article and the administrative procedure in connection with and following any such hearing, with like effect as if the provisions of §29A-5-1 et seq. of this code were set forth in extenso in this section.
(e) Any applicant or licensee who is dissatisfied with the decision of the Board of Review as a result of the hearing provided in this section may, within 30 days after receiving notice of the decision, appeal to the West Virginia Intermediate Court of Appeals for judicial review of the decision.
(f) The court may affirm, modify, or reverse the decision of the Board of Review and either the applicant, or licensee, or the Inspector General may appeal from the court's decision to the Supreme Court of Appeals.
(a) Any person, partnership, association, or corporation, and any local governmental unit or any division, department, board, or agency thereof establishing, conducting, managing, or operating a program without first obtaining a license therefor as herein provided, or violating any provisions of this article or any legislative rule lawfully promulgated thereunder, is guilty of a misdemeanor and, upon conviction thereof, shall be punished for the first offense by a fine of not more than $1,500, with confinement in the county jail for a period of not more than 90 days, or both fined and confined. Each day of a continuing violation after conviction shall be considered a separate offense.
(b) The Director, in consultation with the Inspector General, may deny the provider’s application for licensure or licensure renewal; modify or revoke a license; or order any admission ban or reduction in consumer census for one or more of the following reasons:
(1) The provider fails to submit an adequate plan of correction without formally and timely notifying the director that the provider intends to exercise its due process rights of appeal;
(2) The director makes a determination that fraud or other illegal action has been committed;
(3) The provider violates federal, state, or local law relating to building, health, fire, safety, sanitation, or zoning; or is noncompliant with payment of workers’ compensation or employment security taxes, and fails to remedy such violation given sufficient notice;
(4) The provider conducts practices which jeopardize the health, safety, welfare, or clinical treatment of consumer;
(5) The provider fails or refuses to make records related to compliance with this rule available within a reasonable period of time as requested by the Director; or
(6) The provider fails or refuses to provide access to its service locations within a reasonable period of time as requested by the Director.
(c) Where the operation of the provider clearly constitutes an immediate danger of serious harm to consumers served by the provider, the Director, in consultation with the Inspector General, may issue an order of closure terminating operation of the provider’s program license clearly giving rise to the immediate danger of serious harm. A provider appealing such a closure order does not stay enforcement of the closure order.
(d) If the program conducts a practice which jeopardizes the health, safety, welfare, or clinical treatment of consumers, which such practices clearly give rise to imminent danger of serious harm or the immediate risk or danger of serious harm, the Director, in consultation with the Inspector General, may impose a civil monetary penalty not to exceed $10,000 with criteria to be developed in rulemaking.
(e) Notwithstanding the existence or pursuit of any other remedy, the Inspector General shall, in the manner provided by law, maintain an action in the name of the state for an injunction against any person, partnership, association, or corporation, to restrain or prevent the establishment, conduct, management, or operation of any program or violation of any provision of this article without first obtaining a license in the manner required by this article.
(f) The Inspector General may also seek injunctive relief if the establishment, conduct, management, or operation of any provider, whether licensed or not, jeopardizes the health, safety, or welfare of all of its consumers.
When used in this chapter, terms defined in this section have the meanings ascribed to them that relate to, but are not limited to, child abuse and neglect, except in those instances where a different meaning is provided or the context in which the word is used clearly indicates that a different meaning is intended.
"Abandonment" means any conduct that demonstrates the settled purpose to forego the duties and parental responsibilities to the child;
"Abused child" means:
(1) A child whose health or welfare is being harmed or threatened by:
(A) A parent, guardian, or custodian who knowingly or intentionally inflicts, attempts to inflict, or knowingly allows another person to inflict, physical injury or mental or emotional injury upon the child or another child in the home. Physical injury may include an injury to the child as a result of excessive corporal punishment;
(B) Sexual abuse or sexual exploitation;
(C) The sale or attempted sale of a child by a parent, guardian, or custodian in violation of §61-2-14h of this code;
(D) Domestic violence as defined in §48-27-202 of this code; or
(E) Human trafficking or attempted human trafficking in violation of §61-14-2 of this code.
(2) A child conceived as a result of sexual assault, as that term is defined in this section, or as a result of the violation of a criminal law of another jurisdiction which has the same essential elements: Provided, That no victim of sexual assault may be determined to be an abusive parent as that term is defined in this section, based upon being a victim of sexual assault.
"Abusing parent" means a parent, guardian, or other custodian, regardless of his or her age, whose conduct has been adjudicated by the court to constitute child abuse or neglect as alleged in the petition charging child abuse or neglect.
"Battered parent" for the purposes of §49-4-601 et seq. of this code means a respondent parent, guardian, or other custodian who has been adjudicated by the court to have not condoned the abuse or neglect and has not been able to stop the abuse or neglect of the child or children due to being the victim of domestic violence as defined by §48-27-202 of this code, which was perpetrated by the same person or persons determined to have abused or neglected the child or children.
"Child abuse and neglect" or "child abuse or neglect" means any act or omission that creates an abused child or a neglected child as those terms are defined in this section.
"Child abuse and neglect services" means social services which are directed toward:
(A) Protecting and promoting the welfare of children who are abused or neglected;
(B) Identifying, preventing, and remedying conditions which cause child abuse and neglect;
(C) Preventing the unnecessary removal of children from their families by identifying family problems and assisting families in resolving problems which could lead to a removal of children and a breakup of the family;
(D) In cases where children have been removed from their families, providing time-limited reunification services to the children and the families so as to reunify those children with their families, or some portion of the families;
(E) Placing children in suitable adoptive homes when reunifying the children with their families, or some portion of the families, is not possible or appropriate; and
(F) Assuring the adequate care of children or juveniles who have been placed in the custody of the department or third parties.
"Condition requiring emergency medical treatment" means a condition which, if left untreated for a period of a few hours, may result in permanent physical damage; that condition includes, but is not limited to, profuse or arterial bleeding, dislocation or fracture, unconsciousness, and evidence of ingestion of significant amounts of a poisonous substance.
"Imminent danger to the physical well-being of the child" means an emergency situation in which the welfare or the life of the child is threatened. These conditions may include an emergency situation when there is reasonable cause to believe that any child in the home is or has been sexually abused or sexually exploited, or reasonable cause to believe that the following conditions threaten the health, life, or safety of any child in the home:
(A) Nonaccidental trauma inflicted by a parent, guardian, custodian, sibling, babysitter, or other caretaker;
(B) A combination of physical and other signs indicating a pattern of abuse which may be medically diagnosed as battered child syndrome;
(C) Nutritional deprivation;
(D) Abandonment by the parent, guardian, or custodian;
(E) Inadequate treatment of serious illness or disease;
(F) Substantial emotional injury inflicted by a parent, guardian, or custodian;
(G) Sale or attempted sale of the child by the parent, guardian, or custodian;
(H) The parent, guardian, or custodian’s abuse of alcohol or drugs or other controlled substance as defined in §60A-1-101 of this code, has impaired his or her parenting skills to a degree as to pose an imminent risk to a child’s health or safety; or
(I) Any other condition that threatens the health, life or safety of any child in the home.
"Neglected child" means a child:
(A) Whose physical or mental health is harmed or threatened by a present refusal, failure or inability of the child’s parent, guardian, or custodian to supply the child with necessary food, clothing, shelter, supervision, medical care, or education, when that refusal, failure, or inability is not due primarily to a lack of financial means on the part of the parent, guardian, or custodian;
(B) Who is presently without necessary food, clothing, shelter, medical care, education, or supervision because of the disappearance or absence of the child’s parent or custodian; or
(C) "Neglected child" does not mean a child whose education is conducted within the provisions of §18-8-1 et seq. of this code.
"Parent Resource Navigator" means an individual established through the Court Improvement Program (CIP) or Public Defender Services (PDS) model who is assisting a parent or parents through requirements to be unified or reunified with their child or children.
"Petitioner or copetitioner" means the department or any reputable person who files a child abuse or neglect petition pursuant to §49-4-601 et seq. of this code.
"Permanency plan" means the part of the case plan which is designed to achieve a permanent home for the child in the least restrictive setting available.
"Respondent" means all parents, guardians, and custodians identified in the child abuse and neglect petition who are not petitioners or copetitioners.
"Sexual abuse" means:
(A) Sexual intercourse, sexual intrusion, sexual contact, or conduct proscribed by §61-8c-3 of this code, which a parent, guardian, or custodian engages in, attempts to engage in, or knowingly procures another person to engage in, with a child notwithstanding the fact that for a child who is less than 16 years of age, the child may have willingly participated in that conduct or the child may have suffered no apparent physical, mental, or emotional injury as a result of that conduct or, for a child 16 years of age or older, the child may have consented to that conduct or the child may have suffered no apparent physical injury or mental, or emotional injury as a result of that conduct;
(B) Any conduct where a parent, guardian, or custodian displays his or her sex organs to a child, or procures another person to display his or her sex organs to a child, for the purpose of gratifying the sexual desire of the parent, guardian, or custodian, of the person making that display, or of the child, or for the purpose of affronting or alarming the child; or
(C) Any of the offenses proscribed in §61-8b-7, §61-8b-8, or §61-8b-9 of this code.
"Sexual assault" means any of the offenses proscribed in §61-8b-3, §61-8b-4, or §61-8b-5 of this code.
"Sexual contact" means sexual contact as that term is defined in §61-8b-1 of this code.
"Sexual exploitation" means an act where:
(A) A parent, custodian, or guardian, whether for financial gain or not, persuades, induces, entices, or coerces a child to engage in sexually explicit conduct as that term is defined in §61-8c-1 of this code;
(B) A parent, guardian, or custodian persuades, induces, entices, or coerces a child to display his or her sex organs for the sexual gratification of the parent, guardian, custodian, or a third person, or to display his or her sex organs under circumstances in which the parent, guardian, or custodian knows that the display is likely to be observed by others who would be affronted or alarmed; or
(C) A parent, guardian, or custodian knowingly maintains or makes available a child for the purpose of engaging the child in commercial sexual activity in violation of §61-14-5 of this code.
"Sexual intercourse" means sexual intercourse as that term is defined in §61-8b-1 of this code.
"Sexual intrusion" means sexual intrusion as that term is defined in §61-8b-1 of this code.
"Serious physical abuse" means bodily injury which creates a substantial risk of death, causes serious or prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ.
(a) Reports of child abuse and neglect pursuant to this article shall be made immediately to the department of child protective services by a method established by the Bureau for Social Services: Provided, That if the method for reporting is web-based, the Bureau for Social Services shall maintain a system for addressing emergency situations that require immediate attention and shall be followed by a written report within 48 hours if so requested by the receiving agency. The Bureau for Social Services shall establish and maintain a 24-hour, seven-day-a-week telephone number to receive calls reporting suspected or known child abuse or neglect. Reports of child abuse and neglect pursuant to this article shall be made immediately to the Bureau for Social Services. Reports of child abuse and neglect shall be made to the Bureau of Social Services via a 24-hour, seven-day-a week hotline (centralized intake) that shall be maintained by the Bureau of Social Services to receive calls reporting suspected or known child abuse or neglect or such reports may be made via web-based reporting (email, electronic fax, fillable form, or other electronic form) that sends the reports to a live person to handle the reports immediately. Both systems shall give the reporter a specific case identifier immediately upon making a report.
(b) If a report of child abuse and neglect is made in any fashion other than specified in subsection (a) of this section, then Bureau of Social Services is still required to act upon such report as if the report were made to centralized intake.
(b) The department shall have a redundancy for its system in the event of an outage to receive reports. This redundancy system shall be transparent, meaning that it shall allow for reporting in the same means as if the outage had not occurred and no time delay shall occur from when the outage occurs to when the redundancy system begins to operate. This redundancy system shall be operational no later than July 1, 2023. If the department contends that it currently has a redundancy system, it shall describe the system, provide an operational date for the system, and explain why calls to centralized intake were unanswered to the Joint Committee on Government and Finance by July 1, 2023.
(c) A copy of any report of serious physical abuse, sexual abuse, or assault shall be forwarded by the department to the appropriate law-enforcement agency, the prosecuting attorney, or the coroner or medical examiner’s office. All reports under this article are confidential. Reports of known or suspected institutional child abuse or neglect shall be made and received as all other reports made pursuant to this article.
(d) The department shall annually submit a report in an electronic format, via the legislative webpage, on July 1 to the Joint Committee on Government and Finance, which shall contain: How many calls were made to centralized intake on a per county basis, how many calls were referred to centralized intake on a per county basis, how many calls were screened out centralized intake on a per county basis, and the time from referral to investigation on a per county basis.
(e) All reports made to centralized intake by email, fax, fillable form, or other electronic form from a reporter, shall be retained in the Comprehensive Child Welfare Information System in its original format for at least 12 months.
(f) Audio files recorded from reports made to centralized intake shall be retained in the Comprehensive Child Welfare Information System for at least 12 months.
(g) Any such person receiving a report pursuant to subsection (b) of this section shall make a written record in the Comprehensive Child Welfare Information system detailing the report and retain that record in an appropriate format for a period of at least 12 months.
(a) Within 30 days of the initiation of a judicial proceeding pursuant to part six of this article, the department shall convene a multidisciplinary treatment team to assess, plan, and implement a comprehensive, individualized service plan for children who are victims of abuse or neglect and their families. The multidisciplinary team shall obtain and utilize any assessments for the children or the adult respondents that it deems necessary to assist in the development of that plan.
(b) In a case initiated pursuant to part six of this article, the treatment team consists of:
(1) The child or family’s case manager in the department;
(2) The adult respondent or respondents;
(3) The child’s parent or parents, guardians, any copetitioners, custodial relatives of the child, foster or preadoptive parents;
(4) Any attorney representing an adult respondent or other member of the treatment team;
(5) The child’s counsel or the guardian ad litem;
(6) The prosecuting attorney or his or her designee;
(7) A member of a child advocacy center when the child has been processed through the child advocacy center program or programs or it is otherwise appropriate that a member of the child advocacy center participate;
(8) Any court-appointed special advocate assigned to a case;
(9) Any other person entitled to notice and the right to be heard;
(10) An appropriate school official;
(11) A parent resource navigator;
(11) (12) The managed care case coordinator; and
(12) (13) Any other person or agency representative who may assist in providing recommendations for the particular needs of the child and family, including domestic violence service providers.
The child may participate in multidisciplinary treatment team meetings if the child’s participation is deemed appropriate by the multidisciplinary treatment team. Unless otherwise ordered by the court, a party whose parental rights have been terminated and his or her attorney may not be given notice of a multidisciplinary treatment team meeting and does do not have the right to participate in any treatment team meeting.
(c) Prior to disposition in each case in which a treatment planning team has been convened, the team shall advise the court as to the types of services the team has determined are needed and the type of placement, if any, which will best serve the needs of the child. If the team determines that an out-of-home placement will best serve the needs of the child, the team shall first consider placement with appropriate relatives then with foster care homes, facilities, or programs located within the state. The team may only recommend placement in an out-of-state facility if it concludes, after considering the best interests and overall needs of the child, that there are no available and suitable in-state facilities which can satisfactorily meet the specific needs of the child.
(d) The multidisciplinary treatment team shall submit written reports to the court as required by the rules governing this type of proceeding or by the court and shall meet as often as deemed necessary but at least every three months until the case is dismissed from the docket of the court. The multidisciplinary treatment team shall be available for status conferences and hearings as required by the court.
(e) If a respondent or copetitioner admits the underlying allegations of child abuse or neglect, or both abuse and neglect, in the multidisciplinary treatment planning process, his or her statements may not be used in any subsequent criminal proceeding against him or her, except for perjury or false swearing.
(a) Except as otherwise provided in this chapter or by order of the court, all records and information concerning a child or juvenile which are maintained by the Division of Corrections and Rehabilitation, the Department of Human Services, a child agency or facility, or court or law-enforcement agency, are confidential and may not be released or disclosed to anyone, including any federal or state agency.
(b) Notwithstanding the provisions of subsection (a) of this section or any other provision of this code to the contrary, records concerning a child or juvenile, except adoption records and records disclosing the identity of a person making a complaint of child abuse or neglect, may be made available:
(1) Where otherwise authorized by this chapter;
(2) To:
(A) The child;
(B) A parent whose parental rights have not been terminated;
(C) The attorney of the child or parent; and
(D) The Juvenile Justice Commission and its' designees acting in the course of their official duties;
(3) With the written consent of the child or of someone authorized to act on the child's behalf; and
(4) Pursuant to an order of a court of record: Provided, That the court shall review the record or records for relevancy and materiality to the issues in the proceeding and safety and may issue an order to limit the examination and use of the records or any part thereof.
(c) In addition to those persons or entities to whom information may be disclosed under subsection (b) of this section, information related to child abuse or neglect proceedings, except information relating to the identity of the person reporting or making a complaint of child abuse or neglect, shall be made available upon request to:
(1) Federal, state, or local government entities, or any agent of those entities, including law-enforcement agencies and prosecuting attorneys, having a need for that information in order to carry out its responsibilities under law to protect children from abuse and neglect;
(2) The child fatality review team;
(3) Child abuse citizen review panels;
(4) Multidisciplinary investigative and treatment teams; or
(5) A grand jury, circuit court, or family court, upon a finding that information in the records is necessary for the determination of an issue before the grand jury, circuit court, or family court; and
(6) The West Virginia Crime Victims Compensation Fund and its designees acting in the course of their official duties.
(d) Information related to proceedings involving child abuse or neglect, or both, including information related to the identity of the person reporting or making a complaint of child abuse or neglect, or both, shall be made available, upon request, to the Foster Care Ombudsman, or his or her designee: Provided, That such request is made in the course of their official duties pursuant to §16B-16-1 et seq. of this code.
(d) (e) If there is a child fatality or near fatality due to child abuse and neglect, information relating to a fatality or near fatality shall be made public by the Department of Human Services and provided to the entities described in subsection (c) of this section and to the Critical Incident Review Team as established in §61-12B-1 et seq. of this code: all under the circumstances described in that subsection: Provided, That information released by the Department of Human Services pursuant to this subsection may not include the identity of a person reporting or making a complaint of child abuse or neglect except when such information and records are released to the Foster Care Ombudsman or his or her designee acting in the course of their official duties, the identity of a person reporting or making a complaint of child abuse or neglect may be included: Provided, however, That the Foster Care Ombudsman or his or her designee is acting in the course of their official duties pursuant to §16B-16-1 et seq. of this code. For purposes of this subsection, "near fatality" means any medical condition of the child which is certified by the attending physician to be life-threatening.
(e) (f) Except in juvenile proceedings which are transferred to criminal proceedings, law-enforcement records and files concerning a child or juvenile shall be kept separate from the records and files of adults and not included within the court files. Law-enforcement records and files concerning a child or juvenile shall only be open to inspection pursuant to §49-5-103 of this code.
(f) (g) Any person who willfully violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or confined in jail for not more than six months, or both fined and confined. A person convicted of violating this section is also liable for damages in the amount of $300, or actual damages, whichever is greater.
(g) (h) Notwithstanding the provisions of this section, or any other provision of this code to the contrary, the name and identity of any juvenile adjudicated or convicted of a violent or felonious crime shall be made available to the public;
(h) (i)(1) Notwithstanding the provisions of this section or any other provision of this code to the contrary, the Division of Corrections and Rehabilitation may provide access to, and the confidential use of, a treatment plan, court records, or other records of a juvenile to an agency in another state which:
(A) Performs the same functions in that state that are performed by the Division of Corrections and Rehabilitation in this state;
(B) Has a reciprocal agreement with this state; and
(C) Has legal custody of the juvenile.
(2) A record which is shared under this subsection may only provide information which is relevant to the supervision, care, custody, and treatment of the juvenile;
(3) The Division of Corrections and Rehabilitation may enter into reciprocal agreements with other states and propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement this subsection; and
(4) Other than the authorization explicitly given in this subsection, this subsection may not be construed to enlarge or restrict access to juvenile records as provided elsewhere in this code.
(i) (j) The records subject to disclosure pursuant to subsection (b) of this section may not include a recorded/videotaped interview, as defined in §62-6B-2(6) of this code, the disclosure of which is exclusively subject to §62-6B-6 of this code.
(j) (k) Notwithstanding the provisions of subsection (a) of this section, records in the possession of the Division of Corrections and Rehabilitation declared to be confidential by the provisions of subsection (a) of this section may be published and disclosed for use in an employee grievance if the disclosure is done in compliance with subsections (k), (l), and (m) (l), (m), and (n) of this section.
(k) (l) Records or information declared confidential by the provisions of this section may not be released for use in a grievance proceeding except:
(1) Upon written motion of a party; and
(2) Upon an order of the Public Employee's Grievance Board entered after an in-camera hearing as to the relevance of the record or information.
(l) (m) If production of confidential records or information is disclosed to a grievant, his or her counsel or representative, pursuant to subsection (k) (l) of this section:
(1) The division shall ensure that written records or information is redacted of all identifying information of any juvenile which is not relevant to the resolution of the grievance;
(2) Relevant video and audio records may be disclosed without redaction; and
(3) Records or other information released to a grievant or his or her counsel or representative pursuant to subsection (k) (l) of this section may only be used for purposes of his or her grievance proceeding and may not be disclosed, published, copied, or distributed for any other purpose, and upon the conclusion of the grievance procedure, returned to the Division of Corrections and Rehabilitation.
(m) (n) If a grievant or the Division of Corrections and Rehabilitation seek judicial review of a decision of the Public Employee's Grievance Board, the relevant confidential records disclosed and used in the grievance proceeding may be used in the appeal proceeding upon entry of an order by the circuit court, and the order shall contain a provision limiting disclosure or publication of the records or information to purposes necessary to the proceeding and prohibiting unauthorized use and reproduction.
(n) (o) Nothing in this section may be construed to abrogate the provisions of §29B-1-1 et seq. of this code.
(o) (p) When requested, A a child placing-agency or a residential childcare and treatment facility may shall disclose otherwise confidential information to other child-placing agencies or residential childcare and treatment facilities when making referrals or providing services on behalf of the child. This information shall be maintained in the same manner as provided in this code.
(p) (q) The department shall provide electronic access to information required to perform an adoption to child-placing agencies as necessary to complete the adoption.
(q) (r) A child-placing agency completing adoption as a contractor on behalf of the department shall have access to secure records from vital statistics and other pertinent record holders.
(s) The Bureau for Medical Services and the Bureau for Social Services shall provide electronic access to a child’s medical records taken into their custody to the managed care organization, the child-placing agency, and the person having temporary custody of the child.
ARTICLE 11. SYSTEM REPORTING.
(a) The commissioner shall change update the existing child welfare data dashboard by July 1, 2023, October 1, 2025, and shall update the child welfare data dashboard monthly thereafter to report on system-wide issues including, but not limited to, system-level performance indicators, intake hotline performance indicators, field investigation performance indicators, open case performance indicators, out-of-home placement performance indicators, and federally mandated performance indicators including, but not limited to, time to first contact to all children, information on children in non-placement or temporary lodging status.
(b) The Commissioner shall update the existing child welfare data dashboard with information on child fatality and near fatality information related to those cases subject to review by the Critical Incident Review Team as set forth in §61-12B-1 et seq. of this code within 48 hours of a child fatality or near fatality. With respect to child fatality or near fatality information, the Department of Human Services shall report the following variables: the county of residence, the date of the incident, the child’s sex, the child’s age, and the child’s race/ethnicity. The data dashboard shall provide a link to the final report of the Critical Incident Review Team within 24 hours of its completion. The Commissioner shall send a notification, within 24 hours of child fatalities or near fatalities, to the Office of Inspector General to enable it to convene a meeting of the Critical Incident Review Team.
(c) The child welfare data dashboard shall include workforce information including, but not limited to, the number of child protective services staff that have been hired but who have not completed training, the number and vacancies of adoption workers, and the number and vacancies of home finders.
(d) Starting October 1, 2025, the data reported on the child welfare data dashboard shall be represented as a point in time number and trended over time. Beginning October 1, 2025, the data shall be saved in a way to allow public users to search the dashboard yearly by reporting date, and by county. The Department of Human Services may apply data suppression in order to protect individual identification as necessary.
ARTICLE 12B. CRITICAL INCIDENT REVIEW TEAM.
The Critical Incident Review Team is created for the purpose of reviewing fatalities and near fatalities involving children involved in the child welfare system and making recommendations to identify effective prevention and intervention processes to decrease preventable child fatalities and near fatalities in the child welfare system.
As used in this article:
"Epidemiological analysis" means an analysis of demographic factors related to the child’s fatality or near fatality including, but not limited to, an analysis of the following factors: the date of birth of the child; the sex of the child; the county of the child’s residence; the race/ethnicity of the child; the date the child suffered the fatality or near fatality; the type of maltreatment; the cause of the fatality or near fatality; whether the agency had any contact, and if so, how many times, with the child or a member of the child’s family or household before the fatality or near fatality; and maltreater demographic information.
"Known case" means any Child Protective Services case or youth services case in the Comprehensive Child Welfare Information System or a case assessed by Child Protective Services, youth services, or a contracted vendor;
"Near fatality" means any medical condition of the child which is certified by the attending physician to be life threatening. It shall also include incidents that have been found to have created a substantial risk of death or serious bodily injury to the child.
(a) The Critical Incident Review Team is created under the Office of the Inspector General and is a multidisciplinary team created to oversee and coordinate the examination, review, and assessment of:
(1) The fatality or near fatality of a child in the custody of the Department of Human Services;
(2) The fatality or near fatality of a child who has a known case with the Department of Human Services or who is the immediate family member or a member of a household of a person with a known case with the Department of Human Services; and
(3) The fatality or near fatality of a child whose identity has been brought to the attention of the Department of Human Services through a centralized intake report, regardless of whether the report was accepted for an investigation.
(b) The Critical Incident Review Team shall consist of the following members:
(1) The Commissioner of the Bureau for Social Services, or his or her designee, who is to serve as the chairperson, and is responsible for calling and coordinating meetings of the Critical Incident Review Team;
(2) The Director of the Division of Planning and Quality Improvement;
(3) The Deputy Commissioner of the Bureau for Social Services;
(4) A representative from the Office of Field Support, Programs and Resource Development, Planning and Research, or the Office of Field Operations;
(5) The social services manager for any district having a history with the child or his or her family or any household member that is the subject of the critical incident review;
(6) The Foster Care Ombudsman, or his or her designee;
(7) A representative of the West Virginia Supreme Court of Appeals, Division of Children Services;
(8) A representative from the Prosecuting Attorney’s Institute;
(9) The Superintendent of the West Virginia State Police or his or her designee;
(10) A member of the West Virginia Senate, appointed by the President of the Senate, who shall serve as an ex officio member; and
(11) A member of the West Virginia House of Delegates, appointed by the Speaker of the House, who shall serve as an ex officio member.
(c) Each member shall serve without additional compensation and may not be reimbursed for any expenses incurred in the discharge of his or her duties under the provisions of this article.
(d) The Critical Incident Review Team may seek guidance and opinion regarding any matter under review from outside experts in any related field. At any such time, the Critical Incident Review Team shall require that all appropriate privacy requirements required in this article are in place.
(a) The Critical Incident Review Team shall:
(1) The team shall meet at least quarterly: Provided, That in the event of a fatality or near fatality, the team shall meet within 10 days of such fatality or near fatality to conduct the review required by this article;
(2) Review and analyze all fatalities and near fatalities as required by this article;
(3) Ascertain and document the trends, patterns, and risk factors associated with the fatalities and near fatalities evaluated;
(4) Provide statistical information and an epidemiological analysis regarding the causes of fatalities and near fatalities as specified in this article;
(5) Establish standard procedures for the handling of the critical incident review;
(6) Establish processes and protocols for the review and analysis of fatalities and near fatalities of those who were not suffering from mortal diseases shortly before fatality;
(7) Establish processes and protocols to ensure confidentiality of records obtained by the Critical Incident Review Team; and
(8) Seek additional expert guidance as necessary to complete a review of any fatality or near fatality evaluated.
(b) The team is prohibited from the following:
(1) Contacting a witness or witnesses to take testimony from individuals involved in the investigation of a fatality; or
(2) Otherwise take any action which impedes an ongoing law enforcement investigation.
(a)(1) The Critical Incident Review Team shall submit an initial report within 30 days of the fatality or near fatality to the Legislative Oversight Commission on Health and Human Resources Accountability with updated reports every 90 days.
(2) Any initial reports submitted mid-year and any other updated reports to be made shall be compiled into a final report to be submitted to the Legislative Oversight Commission on Health and Human Resources Accountability which shall be submitted no later than December 1 each year.
(b) The report is to include statistical information and an epidemiological analysis concerning cases reviewed during the year, trends and patterns concerning these cases, and the team’s recommendations to reduce the number of fatalities and near fatalities that occur in this state.
(c) The Critical Incident Review Team may provide reporting to child residential facilities to inform their internal peer review activities. Such information shall be deemed confidential and shall be used only for peer review purposes.
(a) Notwithstanding any other provision of this code to the contrary, the Critical Incident Review Team may request information and records as necessary to carry out its responsibilities. Records and information that may be requested under this section include:
(1) Medical, dental, and mental health records;
(2) Substance abuse records to the extent allowed by federal law; and
(3) Information and records maintained by any state, federal, or local government agency.
(b) State, county, and local government agencies shall provide the Critical Incident Review Team with any information requested in writing by the team.
(a) Proceedings and records of the Critical Incident Review Team established pursuant to this article are confidential and are not subject to discovery, subpoena, or the introduction into evidence in any civil or criminal proceeding. This section does not limit or restrict the right to discover or use in any civil or criminal proceeding anything that is available from another source and entirely independent of the proceedings of the team.
(b) Members of the Critical Incident Review Team may not be questioned in any civil or criminal proceeding regarding information presented or opinions formed as a result of a meeting of the team. This subsection does not prevent a member of a team from testifying to information obtained independently of the team which is public information.
(c) Proceedings and records of the Critical Incident Review Team established by the team are exempt from disclosure under the Freedom of Information Act as provided in §29B-1-1 et seq. of this code.
(d) Notwithstanding any other provision to the contrary, the Critical Incident Review Team shall prepare a compilation of data to be shared, on an annual basis or more often as requested or needed, with the Centers for Disease Control and Prevention to study child fatalities or near fatalities.
(e) Information shall be maintained by the Critical Incident Review Team in a confidential manner compliant with the Health Insurance Portability and Accountability Act of 1996.
Adopted
Rejected