West Virginia Code 16-49-5 – Variance; appeals
(a) If the secretary issues a notice of ineligibility, the applicant, or the employer on the applicant’s behalf, may file a written request for a variance with the secretary not later than 30 days after the date of the notice required by §16-49-3 or § 16-49-4 of this code.
Terms Used In West Virginia Code 16-49-5
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Applicant: means an individual who is being considered for employment or engagement with the department, a covered provider or covered contractor. See West Virginia Code 16-49-1
- Bureau: means a division within the Department of Health and Human Resources. See West Virginia Code 16-49-1
- Covered contractor: means an individual or entity, including their employees and subcontractors, that contracts with a covered provider to perform services that include any direct access services. See West Virginia Code 16-49-1
- Covered provider: means the following facilities or providers:
(i) A skilled nursing facility. See West Virginia Code 16-49-1
- Disqualifying offense: means :
(A) A conviction of any crime described in 42 U. See West Virginia Code 16-49-1
- Negative finding: means a finding in the prescreening that excludes an applicant from direct access personnel positions. See West Virginia Code 16-49-1
- Notice of ineligibility: means a notice pursuant to §. See West Virginia Code 16-49-1
- Secretary: means the Secretary of the West Virginia Department of Health and Human Resources, or his or her designee. See West Virginia Code 16-49-1
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
- State Police: means the West Virginia State Police Criminal Identification Bureau. See West Virginia Code 16-49-1
(b) The secretary may grant a variance if:
(1) Mitigating circumstances surrounding the negative finding or disqualifying offense is provided; and
(2) The secretary finds that the individual will not pose a danger or threat to residents, members and their property.
(c) The secretary shall establish in legislative rule factors that qualify as mitigating circumstances.
(d) The secretary shall mail to the applicant and the bureau, covered provider, or covered contractor a written decision within 60 days of receipt of the request indicating whether a variance has been granted or denied.
(e) If an applicant believes that their criminal history record information within this state is incorrect or incomplete, they may challenge the accuracy of such information by writing to the State Police for a personal review. However, if the discrepancies are at the charge or final disposition level, the applicant must address this with the court or arresting agency that submitted the record to the State Police.
(f) If an applicant believes that their criminal history record information outside this state is incorrect or incomplete, they may appeal the accuracy of such information by contacting the Federal Bureau of Investigation for instructions.
(g) If any changes, corrections, or updates are made in the criminal history record information, the State Police shall notify the secretary that the applicant has appealed the accuracy of the criminal history records and provide the secretary with the updated results of the criminal history record information check, which the secretary shall review de novo in accordance with the provisions of this article.