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Introduced Version House Bill 4014 History

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FISCAL NOTEWEST virginia legislature

2018 regular session

Introduced

House Bill 4014

By Delegates Summers, Romine, R., Ellington, Rohrbach, Maynard, Householder, Miller, C., Cooper, Dean and Ambler

[Introduced January 18, 2018; Referred
to the Committee on Health and Human Resources then Finance.
]

A BILL to repeal §16-1-5 of the Code of West Virginia, 1931, as amended; to repeal §16-2G-1 of said code; to repeal §16-4A-1, §16-4A-2, §16-4A-3, §16-4A-4, §16-4A-5 and §16-4A-6 of said code; to repeal §16-4E-1, §16-4E-2, §16-4E-3, §16-4E-4, §16-4E-5 and §16-4E-6 of said code; to repeal §16-22-1, §16-22-2, §16-22-3, §16-22-4, §16-22-5 and §16-22-6 of said code; to repeal §16-22A-1, §16-22A-2, §16-22A-3 and §16-22A-4 of said code; to repeal §16-22B-1, §16-22B-2, §16-22B-3 and §16-22B-4 of said code; to repeal §16-24-8 of said code; to repeal §16-37-1, §16-37-2, §16-37-3, §16-37-4 and §16-37-5 of said code; to repeal §16-38-1, §16-38-2, §16-38-3, §16-38-4, §16-38-5, §16-38-6 and §16-38-7 of said code; to repeal §16-44-1 and §16-44-2 of said code; to repeal §16-45-1, §16-45-2, §16-45-3, §16-45-4 and §16-45-5 of said code; to amend and reenact §5-6-4 of said code; to amend and reenact §5-14-3 of said code; to amend and reenact §5F-1-2 and §5F-1-3a of said code; to amend and reenact §5F-2-1, §5F-2-2 and §5F-2-7 of said code; to amend and reenact §5F-3-1 and §5F-3-2 of said code; to amend and reenact §6-7-2a of said code; to amend and reenact §8-19-18 of said code; to amend and reenact chapter 9 of said code; to amend and reenact §15-12-2a and §15-12-2b of said code; to amend and reenact §16-1-2, §16-1-3 and §16-1-6 of said code; to amend said code by adding thereto six new sections designated §16-1-3a, §16-1-5a, §16-1-5b, §16-1-6a, §16-1-6b and §16-1-6c; to amend and reenact §16-2-2 and §16-2-9 of said code; to amend and reenact §16-3-4 of said code; to amend and reenact §16-3D-2 of said code; to amend and reenact §16-8-1 and §16-8-2 of said code; to amend said code by adding thereto four new sections designated §16-8-3, §16-8-4, §16-8-5 and §16-8-6; to amend and reenact §16-29E-2, §16-29E-3, §16-29E-5 of said code; to amend and reenact §17C-5-6a of said code; to amend and reenact §17C-5A-3 of said code; to amend and reenact §18-4-2 of said code; to amend and reenact §18-5-22c of said code; to amend and reenact §18-7A-3 of said code; to amend and reenact §18-9E-3 and §18-9E-5, of said code; to amend and reenact §18-10K-2 of said code; to amend and reenact §18C-3-1 of said code; to amend and reenact §19-11D-1 and §19-11D-3 of said code; to amend and reenact §19-12A-6 of said code; to amend and reenact §19-16A-4 of said code; to amend and reenact §20-2-28 of said code; to amend and reenact §22-15-10 of said code; to amend and reenact §22-28-4 and §22-28-5 of said code; to amend and reenact §22C-4-10 of said code; to amend and reenact §25-1-3 of said code; to amend and reenact chapter 27 of said code; to amend and reenact §30-3-4, §30-3-5 and §30-3-8 of said code; to amend and reenact §30-16-19 of said code; to amend and reenact §31-15A-2 and §31-15A-3 of said code; to amend and reenact §48-1-236 of said code; to amend and reenact §48-14-401 of said code; to amend and reenact §48-18-101, §48-18-108 and §48-18-126 of said code; to amend and reenact §48-19-103 of said code; to amend and reenact §48-22-104 of said code; to amend and reenact §48-23-301 of said code; to amend and reenact §48-26-501, §48-26-502 and §48-26-503 of said code; to amend and reenact §49-1-206 and §49-1-208 of said code; to amend and reenact §49-2-901, §49-2-902, §49-2-903, §49-2-905, §49-2-906 and §49-2-913 of said code; to amend and reenact §49-7-204 of said code; to amend and reenact §61-12-3, §61-12-4 and §61-12-6 of said code; and to amend and reenact §62-13-5 of said code, all relating to reorganization of the West Virginia Department of Health and Human Resources; creating the Departments of Health and Compliance, Human Services and Healthcare Facilities; creating the Office of Inspector General; setting out powers and duties of cabinet secretaries and Inspector General; setting out powers and duties of newly created departments and Office of Inspector General; transferring various functions, personal and authority from existing department to the newly created departments; creating various bureaus within the newly created departments; setting forth powers and duties of commissioners of bureaus; setting forth powers and duties of the bureaus; transferring and restructuring various existing functionality among bureaus; revising, rearranging and recodifying the laws of the State of West Virginia relating to health care, human services and behavioral health; providing for various transition plans; requiring restructuring to remain as revenue neutral as possible; transferring the Division of Juvenile Services from the Department of Military Affairs and Public Safety to the newly created Department of Human Services; placing autonomous healthcare licensing boards within the newly created Department of Health and Compliance for administrative purposes; defining terms; making various technical corrections and removing outdated language.

Be it enacted by the Legislature of West Virginia:


CHAPTER 5. GENERAL POWERS AND AUTHORITY OF THE GOVERNOR, SECRETARY OF STATE AND ATTORNEY GENERAL; BOARD OF PUBLIC WORKS; MISCELLANEOUS AGENCIES, COMMISSIONS, OFFICES, PROGRAMS, ETC.



§5-6-4. Powers of commission.

The commission has the power:

(1) To sue and be sued, plead and be impleaded;

(2) To have a seal and alter the same at pleasure;

(3) To contract to acquire and to acquire, in the name of the commission or of the state, by purchase, lease, lease-purchase or otherwise, real property or rights or easements necessary or convenient for its corporate purposes and to exercise the power of eminent domain to accomplish those purposes;

(4) To acquire, hold and dispose of personal property for its corporate purposes;

(5) To make bylaws for the management and regulation of its affairs;

(6) With the consent of the Attorney General of the State of West Virginia, to use the facilities of his or her office, assistants and employees in all legal matters relating to or pertaining to the commission;

(7) To appoint officers, agents and employees and fix their compensation;

(8) To make contracts, and to execute all instruments necessary or convenient to effectuate the intent of, and to exercise the powers granted to it by this article;

(9) To renegotiate all contracts entered into by it whenever, due to a change in situation, it appears to the commission that its interests will be best served;

(10) To construct a building or buildings on real property, which it may acquire, or which may be owned by the State of West Virginia, in the city of Charleston, as convenient as may be to the capitol building, together with incidental approaches, structures and facilities, subject to the consent and approval of the city of Charleston in any case as may be necessary; and, in addition, to acquire or construct a warehouse, including office space in the warehouse in Kanawha County for the West Virginia Alcohol Beverage Control Commissioner, and equip and furnish the office space; and to acquire or construct, through lease, purchase, lease-purchase or bond financing, hospitals or other facilities, buildings, or additions or renovations to buildings as may be necessary for the safety and care of patients, inmates and guests at facilities under the jurisdiction of and supervision of the division of health Department of Health and Compliance, the Department of Human Services and at institutions under the jurisdiction of the Division of Corrections or the regional jail and correctional facilities authority; and to formulate and program plans for the orderly and timely capital improvement of all of the hospitals and institutions and the state Capitol buildings; and to construct a building or buildings in Kanawha County to be used as a general headquarters by the division of public safety to accommodate that division's executive staff, clerical offices, technical services, supply facilities and dormitory accommodations; and to develop, improve and expand state parks and recreational facilities to be operated by the Division of Natural Resources; and to establish one or more systems or complexes of buildings and projects under control of the commission; and, subject to prior agreements with holders of bonds previously issued, to change the systems, complexes of buildings and projects from time to time, in order to facilitate the issuance and sale of bonds of different series on a parity with each other or having such priorities between series as the commission may determine; and to acquire by purchase, eminent domain or otherwise all real property or interests in the real property necessary or convenient to accomplish the purposes of this subdivision. The rights and powers set forth in this subdivision shall not be construed as in derogation of any rights and powers now vested in the West Virginia Alcohol Beverage Control Commissioner, the Department of Health and Compliance and the Department of Human Resources Services, the Division of Corrections or the Division of Natural Resources;

(11) To maintain, construct and operate a project authorized under this article;

(12) To charge rentals for the use of all or any part of a project or buildings at any time financed, constructed, acquired or improved, in whole or in part, with the proceeds of sale of bonds issued pursuant to this article, subject to and in accordance with such agreements with bondholders as may be made as provided in this article: Provided, That on and after the effective date of the amendments to this section, to charge rentals for the use of all or any part of a project or buildings at any time financed, constructed, acquired, maintained or improved, in whole or in part, with the proceeds of sale of bonds issued pursuant to this article, subject to and in accordance with such agreements with bondholders as may be made as in this section provided, or with any funds available to the state building commission, including, but not limited to, all buildings and property owned by the State of West Virginia or by the state building commission, but no rentals shall be charged to the Governor, Attorney General, Secretary of State, State Auditor, State Treasurer, the Legislature and the members of the Legislature, the Supreme Court of Appeals, nor for their offices, agencies, official functions and duties;

(13) To issue negotiable bonds and to provide for the rights of the holders of the negotiable bonds;

(14) To accept and expend any gift, grant or contribution of money to, or for the benefit of, the commission, from the State of West Virginia or any other source for any or all of the purposes specified in this article or for any one or more of such purposes as may be specified in connection with the gift, grant or contribution;

(15) To enter on any lands and premises for the purpose of making surveys, soundings and examinations;

(16) To invest in United States government obligations, on a short-term basis, any surplus funds which the commission may have on hand pending the completion of any project or projects;

(17) To issue revenue bonds in accordance with the applicable provisions of this article for the purposes set forth in §5-6-11a of this code; and

(18) To do all things necessary or convenient to carry out the powers given in this article.

(19) The power and authority granted to the state building commission pursuant to this section and §5-6-7, §5-6-8, and §5-6-11a of this code to initiate, acquire, construct, finance or develop projects; to issue revenue bonds; or to exercise the power of eminent domain with respect to any project, shall terminate on the effective date of this section: Provided, That nothing herein shall be construed to affect the validity of any act of the state building commission prior to the effective date of this section or to impair the rights of bondholders with respect to bonds or other evidence of indebtedness issued prior to the effective date of this section. Following the effective date of this section, the secretary of administration may exercise any power expressly granted pursuant to this article with respect to any project or facility previously constructed or acquired, any existing contractual obligations, and any outstanding bonded indebtedness. Refunding bonds for any outstanding bonded indebtedness are authorized, subject to the provisions of §13-2E-1 et seq. of this code. The West Virginia Economic Development Authority provided for in §31-15-1 et seq. of this code is designated to act as the governing body whose authorizations and determinations are required for the purpose of refunding bonds.


ARTICLE 14. WEST VIRGINIA COMMISSION FOR THE DEAF AND HARD-OF-HEARING.


§5-14-3. Continuation of commission; membership.

(a) The West Virginia Commission for the Deaf and Hard of Hearing is continued within the Department of Health and Human Resources Human Services consisting of seventeen persons, eight of whom shall serve ex officio. The remaining members are appointed by the Governor by and with the advice and consent of the Senate. The commission shall meet no less than four times annually. All meetings and activities held by the commission shall be attended by at least two qualified interpreters who shall be hired at the commission's expense or provided free of charge by agencies, organizations or individuals willing to volunteer qualified interpreters.

(b) The members are: The Secretary of the Department of Health and Human Resources Human Services, or his or her designee; the Commissioner of the Division of Labor, or his or her designee; the Commissioner of the Bureau for Public Health, or his or her designee; the state Superintendent of Schools, or his or her designee; the Director of the Division of Rehabilitation Services, or his or her designee; the Commissioner of the Division of Human Services Secretary of the Department of Health and Compliance, or his or her designee; the Chairman of the Advisory Council for the Education of Exceptional Children, or his or her designee; and the superintendent of the West Virginia School for the Deaf and Blind, or his or her designee, all of whom serve ex officio with full voting privileges.

(c) The Governor shall appoint nine persons, at least five of whom are deaf or hard of hearing, one of whom is the parent of a deaf child, one of whom is a certified teacher of the hearing-impaired, one audiologist and one otolaryngologist. Of the five deaf people, at least three shall be selected from a list of five people recommended by the board of the West Virginia Association of the Deaf.


CHAPTER 5F. REORGANIZATION OF THE EXECUTIVE BRANCH OF STATE GOVERNMENT.


ARTICLE 1. GENERAL PROVISIONS.


§5F-1-2. Executive departments created; offices of secretary created.

(a) There are created, within the executive branch of the state government, the following departments:

(1) Department of Administration;

(2) Department of Education and the Arts;

(3) Department of Environmental Protection;

(4) Effective July 1, 2019, Department of Health and Human Resources Compliance;

(5) Effective July 1, 2019, Department of Human Services;

(6) Effective July 1. 2019, Department of Healthcare Facilities;;

(5) (7) Department of Military Affairs and Public Safety;

(6) (8) Department of Revenue;

(7) (9) Department of Transportation;

(8) (10) Department of Commerce; and

(9) Effective July 1, 2011 (11) Department of Veterans' Assistance.

(b) Each department will be headed by a secretary appointed by the Governor with the advice and consent of the Senate. Each secretary serves at the will and pleasure of the Governor.

(c) Effective July 1, 2019, unless the context indicates otherwise, any reference in this code to the Secretary of the Department of Health and Human Resources shall be and refer to the secretary of the department which has control over the functions referenced in any section, article of chapter of this code which had previously been granted to the Secretary of the Department of Health and Human Resources. 

(d) Effective July 1, 2019, unless the context indicates otherwise any reference to any powers, duties, functions or responsibility set forth in this code of the Secretary of the Department of Health and Human Resources shall transfer and become the powers, duties, functions and responsibility of the secretary which has either expressly been granted that power, duty, function or responsibility in chapters 9 or 16 of this code or by the intent of any section, article or chapter of this code that power, duty, function or responsibility would logically be within one of the departments created in chapter 9 of this code and over which the appropriate secretary has control.


§5F-1-3a. Executive Compensation Commission.

There is hereby created an Executive Compensation Commission composed of three members, one of whom shall be the Secretary of Administration, one of whom shall be appointed by the Governor from the names of two or more nominees submitted by the President of the Senate, and one of whom shall be appointed by the Governor from the names of two or more nominees submitted by the Speaker of the House of Delegates. The names of such nominees shall be submitted to the Governor by not later than June 1, 2000, and the appointment of such members shall be made by the Governor by not later than July 1, 2000. The members appointed by the Governor shall have had significant business management experience at the time of their appointment and shall serve without compensation other than reimbursement for their reasonable expenses necessarily incurred in the performance of their commission duties. For the 2001 regular session of the Legislature and every four years thereafter, the commission shall review the compensation for cabinet secretaries and other appointed officers of this state, including, but not limited to, the following: Commissioner, Division of Highways; commissioner, Bureau of Employment Programs; director, Division of Environmental Protection; Executive Director, WorkForce West Virginia; commissioner, Bureau of Senior Services; director of tourism; commissioner, division of tax; administrator, division of health; commissioner, Division of Corrections; director, Division of Natural Resources; superintendent, state police; administrator, lottery division; director, Public Employees Insurance Agency; administrator, Alcohol Beverage Control Commission; commissioner, Division of Motor Vehicles; director, Division of Personnel; Adjutant General; the Executive Director of the Health Care Authority; director, Division of Rehabilitation Services; executive director, educational broadcasting authority; executive secretary, Library Commission; chairman and members of the Public Service Commission; director of emergency services; administrator, division of human services; executive director, Human Rights Commission; director, division of Veterans Affairs; director, office of miner’s health safety and training; commissioner, Division of Banking; commissioner, division of insurance; commissioner, Division of Culture and History; commissioner, Division of Labor; director, Prosecuting Attorneys Institute; director, Board of Risk and Insurance Management; commissioner, oil and gas conservation commission; director, geological and economic survey; executive director, water development authority; executive director, Public Defender Services; director, state rail authority; chairman and members of the Parole Board; members, employment security review board; members, workers’ compensation appeal board; chairman, Racing Commission; executive director, women’s commission; and director, hospital finance authority.

Following this review, but not later than the twenty-first day of such regular session, the commission shall submit an executive compensation report to the Legislature to include specific recommendations for adjusting the compensation for the officers described in this section. The recommendation may be in the form of a bill to be introduced in each house to amend this section to incorporate the recommended adjustments.

ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.


§5F-2-1. Transfer and incorporation of agencies and boards; funds.

(a) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Administration:

(1) Building Commission provided in §5-6-1 et seq. of this code;

(2) Public Employees Insurance Agency provided in §5-16-1et seq. of this code;

(3) Governor's Mansion Advisory Committee provided in §5A-5-1 et seq. of this code;

(4) Commission on Uniform State Laws provided in §29-1A-1 et seq. of this code;

(5) West Virginia Public Employees Grievance Board provided in §6C-3-1 et seq. of this code;

(6) Board of Risk and Insurance Management provided in §29-12-1 et seq. of this code;

(7) Boundary Commission provided in §29-23-1 et seq. of this code;

(8) Public Defender Services provided in §29-21-1 et seq. of this code;

(9) Division of Personnel provided in §29-6-1 et seq. of this code;

(10) The West Virginia Ethics Commission provided in §6B-2-1 et seq. of this code;

(11) Consolidated Public Retirement Board provided in §5-10D-1 et seq. of this code; and

(12) Real Estate Division provided in §5A-10-1 et seq. of this code.

(b) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Commerce:

(1) Division of Labor provided in §21-1-1 et seq. of this code, which includes:

(A) Occupational Safety and Health Review Commission provided in §21-3A-1 et seq. of this code; and

(B) Board of Manufactured Housing Construction and Safety provided in §21-9-1 et seq. of this code.

(2) Office of Miners' Health, Safety and Training provided in §22A-1-1 et seq. of this code. The following boards are transferred to the Office of Miners' Health, Safety and Training for purposes of administrative support and liaison with the Office of the Governor:

(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review Committee provided in §22A-6-1 et seq. of this code;

(B) Board of Miner Training, Education and Certification provided in §22A-7-1 et seq. of this code; and

(C) Mine Inspectors' Examining Board provided in §22A-9-1 et seq. of this code.

(3) The West Virginia Development Office provided in §5B-2-1 et seq. of this code;

(4) Division of Natural Resources and Natural Resources Commission provided in §20-1-1 et seq. of this code;

(5) Division of Forestry provided in §19-1A-1 et seq. of this code;

(6) Geological and Economic Survey provided in §29-2-1 et seq. of this code; and

(7) Workforce West Virginia provided in chapter 21A of this code, which includes:

(A) Division of Unemployment Compensation;

(B) Division of Employment Service;

(C) Division of Workforce Development; and

(D) Division of Research, Information and Analysis.

(8) Division of Energy provided in §5B-2F-1 et seq. of this code.

(9) Division of Tourism Commission provided in §5B-2H-1 et seq. of this code.

(c) The Economic Development Authority provided in §31-15-1 et seq. of this code is continued as an independent agency within the executive branch.

(d) The Water Development Authority and the Water Development Authority Board provided in §22C-1-1 et seq. of this code is continued as an independent agency within the executive branch.

(e) The following agencies and boards, including all of the allied, advisory and affiliated entities, are transferred to the Department of Environmental Protection for purposes of administrative support and liaison with the office of the Governor:

(1) Air Quality Board provided in §22B-2-1 et seq. of this code;

(2) Solid Waste Management Board provided in §22C-3-1 et seq. of this code;

(3) Environmental Quality Board, or its successor board, provided in §22B-3-1 et seq. of this code;

(4) Surface Mine Board provided in §22B-4-1 et seq. of this code;

(5) Oil and Gas Inspectors' Examining Board provided in §22C-7-1 et seq. of this code;

(6) Shallow Gas Well Review Board provided in §22C-8-1 et seq. of this code; and

(7) Oil and Gas Conservation Commission provided in §22C-9-1 et seq. of this code.

(f) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Education and the Arts:

(1) Library Commission provided in §10-1-1 et seq. of this code;

(2) Division of Culture and History provided in §29-1-1 et seq. of this code; and

(3) Division of Rehabilitation Services provided in §18-10A-1 et seq. of this code.

(g) The Educational Broadcasting Authority provided in §10-5-1 et seq. of this code is part of the Department of Education and the Arts for the purposes of administrative support and liaison with the office of the Governor.

(h) Effective July 1, 2019, the following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Health and Human Resources Compliance:

(1) Human Rights Commission provided in article eleven, chapter five of this code;

(2) Division of Human Services provided in article two, chapter nine of this code;

(3) Bureau for Public Health provided in article one, chapter sixteen of this code;

(4) Office of Emergency Medical Services and the Emergency Medical Service Advisory Council provided in article four-c, chapter sixteen of this code;

(5) Health Care Authority provided in article twenty-nine-b, chapter sixteen of this code;

(6) Commission on Mental Retardation provided in article fifteen, chapter twenty-nine of this code;

(7) Women's Commission provided in article twenty, chapter twenty-nine of this code; and

(8) (1) The Bureau for Child Support Enforcement Division provided in chapter 48 of this code.

(2) Bureau for Public Health provided in §16-1-1 et seq. of this code.

(3) Health Care Authority provided in §16-29B-1 et seq. of this code; 

(4) The following regulatory boards which shall remain as autonomous entities but may request administrative support and coordination by the Department of Health and Compliance for purposes of consistency of service delivery:

(A) Acupuncture Board provided in §30-36-1 et seq. of this code;

(B) Board of Chiropractic provided in §30-16-1 et seq. of this code;

(C) Board of Dentistry provided in §30-4-1 et seq. of this code including, the following ancillary duties of the Board of Dentistry:

(i) Administration of anesthesia by dentist provided in §30-4A-1 et seq. of this code; and

(ii) Dental laboratory services provided in §30-4B-1 et seq. of this code.

(D) Board of Directors for the West Virginia Center for Nursing provided in §30-7B-1 et seq. of this code;

(E) Board of Examiners in Counseling provided in §30-31-1 et seq. of this code;

(F) Board of Examiners for Licensed Practical Nurses provided in §30-7A-1 et seq. of this code;

(G) Board of Examiners of Psychologist provided in §30-21-1 et seq. of this code;

(H) Board of Examiners for Registered Professional Nurses provided in §30-7-1 et seq. of this code including the following ancillary duties of the Board of Examiners for Registered Professional Nurses:

(i) Dialysis technicians provided in §30-7C-1 et seq. of this code;

(ii) Medication assistive persons provided in §30-7D-1-et seq. of this code;

(iii) Nurse health programs provided in §30-7E-1 et seq. of this code; and

(iv) Nurse midwives provided in §30-15-1 et seq. of this code.

(I) Board of Examiners for Speech-Language Pathology and Audiology provided in §30-32-1 et seq. of this code;

(J) Board of Licensed Dieticians provided in §30-35-1 et seq. of this code;

(K) Board of Medicine provided in §30-3-1 et seq. of this code and the Board of Osteopathic Medicine provided in §30-14-1 et seq. of this code including the following ancillary duties of the Board of Medicine and the Board of Osteopathic Medicine:

(i) Management of pain provided in §30-3A-1 et seq. of this code;

(ii) Physician health programs provided in §30-3D-1 et seq. of this code; and

(iii) Physician assistants practice provided in §30-3D-1 et seq. of this code.

(L) Board of Optometry provided in §30-8-1 et seq. of this code including the ancillary duties of the Board of Optometry relative to eye care consumer protection provided in §30-8A-1 et seq. of this code;

(M) Board of Pharmacy provided in §30-5-1 et seq. of this code;

(N) Board of Physical Therapy provided in §30-20-1 et seq. of this code including the ancillary duties of the Board of Physical Therapy relative to athletic trainers provided in §30-20A-1 et seq. of this code;

(O) Board for Respiratory Care provided in §30-34-1 et seq. of this code;

(P) Massage Therapy Licensure Board provided in §30-37-1 et seq. of this code;

(Q) Medical Imaging and Radiation Therapy Technology Board of Examiners provided in §30-23-1 et seq. of this code; and

(R) Nursing Home Administrators Licensing Board provided in §30-25-1 et seq. of this code.

(5) The following functions shall also transfer to the Department of Health and  Compliance effective July 1, 2019:

(A) Health Care peer review organization protections provided in §30-3C-1 et seq. of this code; and

(B) Qualification for Armed Forces Health Technicians for Civilian Health Occupations provided in §30-24-1 et seq. of this code.

(j) Effective July 1, 2019, the following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Human Services:

(1) Bureau for Behavioral Health provided in §27-2-1 et seq. of this code;

(2) Commission on Intellectual Disability provided in §29-15-1 et seq. of this code; and

(3) Bureau for Economic Assistance provided in chapter 9 of this code, including Special Supplementary Food Program for Women, Infants and Children (WIC);

(4) Bureau for Child and Family Services provided in chapter 9 of this code, which includes the Division of Juvenile Services provided in §49-2-1 et seq. of this code and the Office of Maternal, Child and Family Health as set forth in chapter 9 of this code;

(5) Board of Social Work provided in §30-30-1 et seq. of this code;

(6) Human Rights Commission provided in §5-11-1 et seq. of this code; 

(7) Women's Commission provided in §29-20-1 et seq. of this code;

(8) Bureau for Medical Services provided in chapter 9 of this code and Early and Periodic Screening, Diagnostic and Treatment programs; and

(9) Children’s Health Insurance Program provided in chapter 9 of this code.

(k) Effective July 1, 2019, the following state owned and operated facilities, including all of the allied, advisory, affiliated or related entities and funds associated with any facility, are incorporated in and administered as a part of the Department of Healthcare Facilities:

(1) The Welch Community Hospital;

(2) William R. Sharpe, Jr. Hospital;

(3) Mildred-Mitchell Bateman Hospital;

(4) Hopemont Hospital;

(5) John Manchin Health Care Center;

(6) Lakin Hospital;

(7) Jackie Withrow Hospital; and

(8) The West Virginia Children’s Home.

(i) (l) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Military Affairs and Public Safety:

(1) Adjutant General's Department provided in §15-1A-1 et seq. of this code;

(2) Armory Board provided in §15-6-1 et seq. of this code;

(3) Military Awards Board provided in §15-1G-1 et seq. of this code;

(4) West Virginia State Police provided in §15-2-1 et seq. of this code;

(5) Division of Homeland Security and Emergency Management and Disaster Recovery Board provided in §15-5-1 et seq. of this code and Emergency Response Commission provided in §15-5A-1 et seq. of this code;

(6) Sheriffs' Bureau provided in §15-8-1 et seq. of this code;

(7) Division of Justice and Community Services provided in §15-9A-1 et seq. of this code;

(8) Division of Corrections provided in chapter 25 of this code;

(9) Fire Commission provided in §29-3-1 et seq. of this code;

(10) Regional Jail and Correctional Facility Authority provided in §31-20-1 et seq. of this code; and

(11) Board of Probation and Parole provided in §62-12-1 et seq. of this code.

(j) (m) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Revenue:

(1) Tax Division provided in chapter 11 of this code;

(2) Racing Commission provided in §19-23-1 et seq. of this code;

(3) Lottery Commission and position of Lottery Director provided in §29-22-1 of this code;

(4) Insurance Commissioner provided in §33-2-1 et seq. of this code;

(5) West Virginia Alcohol Beverage Control Commissioner provided in §11-16-1 et seq. of this code and §60-2-1 et seq. of this code;

(6) Board of Banking and Financial Institutions provided in §31A-3-1 et seq. -one-a of this code;

(7) Lending and Credit Rate Board provided in chapter 47A of this code;

(8) Division of Banking provided in §31A-2-1 et seq. of this code;

(9) The State Budget Office provided in article two of this chapter §11B-2-1 et seq. of this code;

(10) The Municipal Bond Commission provided in §13-3-1 et seq. of this code;

(11) The Office of Tax Appeals provided in §11-10A-1 of this code; and

(12) The State Athletic Commission provided in §29-5A-1 et seq. of this code.

(k) (n) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds associated with any agency or board, are incorporated in and administered as a part of the Department of Transportation:

(1) Division of Highways provided in §17-2A-1 et seq. of this code;

(2) Parkways, Economic Development and Tourism Authority provided in §17-16A-1 et seq. of this code;

(3) Division of Motor Vehicles provided in §17A-2-1 et seq. of this code;

(4) Driver's Licensing Advisory Board provided in §17B-2-1 et seq. of this code;

(5) Aeronautics Commission provided in §29-2A-1 et seq. of this code;

(6) State Rail Authority provided in §29-18-1 et seq. of this code; and

(7) Public Port Authority provided in §17-16B-1 et seq. of this code.

(l) (o) Effective July 1, 2011, the Veterans' Council provided in §9A-1-1 et seq. of this code, including all of the allied, advisory, affiliated or related entities and funds associated with it, is incorporated in and administered as a part of the Department of Veterans' Assistance.

(m) (p) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of §5F-2-2 of this code, the position of administrator and the powers, authority and duties of each administrator and agency are not affected by the enactment of this chapter.

(n) (q) Except for powers, authority and duties that have been delegated to the secretaries of the departments by the provisions of §5F-2-2 of this code, the existence, powers, authority and duties of boards and the membership, terms and qualifications of members of the boards are not affected by the enactment of this chapter. All boards that are appellate bodies or are independent decision makers shall not have their appellate or independent decision-making status affected by the enactment of this chapter.

(o) (r) Any department previously transferred to and incorporated in a department by prior enactment of this section means a division of the appropriate department. Wherever reference is made to any department transferred to and incorporated in a department created in §5F-1-2 of this code, the reference means a division of the appropriate department and any reference to a division of a department so transferred and incorporated means a section of the appropriate division of the department.

(p) (s) When an agency, board or commission is transferred under a bureau or agency other than a department headed by a secretary pursuant to this section, that transfer is solely for purposes of administrative support and liaison with the Office of the Governor, a department secretary or a bureau. Nothing in this section extends the powers of department secretaries under §5F-2-2 of this code to any person other than a department secretary and nothing limits or abridges the statutory powers and duties of statutory commissioners or officers pursuant to this code.


§5F-2-2. Power and authority of secretary of each department.

(a) Notwithstanding any other provision of this code to the contrary, the secretary of each department shall have plenary power and authority within and for the department to:

(1) Employ and discharge within the office of the secretary employees as may be necessary to carry out the functions of the secretary, which employees shall serve at the will and pleasure of the secretary;

(2) Cause the various agencies and boards to be operated effectively, efficiently and economically and develop goals, objectives, policies and plans that are necessary or desirable for the effective, efficient and economical operation of the department;

(3) Eliminate or consolidate positions, other than positions of administrators or positions of board members and name a person to fill more than one position;

(4) Transfer permanent state employees between departments in accordance with the provisions of §5F-2-7 of this code;

(5) Delegate, assign, transfer or combine responsibilities or duties to or among employees, other than administrators or board members;

(6) Reorganize internal functions or operations;

(7) Formulate comprehensive budgets for consideration by the Governor and transfer within the department funds appropriated to the various agencies of the department which are not expended due to cost savings resulting from the implementation of the provisions of this chapter: Provided, That no more than twenty-five percent of the funds appropriated to any one agency or board may be transferred to other agencies or boards within the department: Provided, however, That no funds may be transferred from a special revenue account, dedicated account, capital expenditure account or any other account or funds specifically exempted by the Legislature from transfer, except that the use of appropriations from the state Road Fund transferred to the office of the Secretary of the Department of Transportation is not a use other than the purpose for which the funds were dedicated and is permitted: Provided further, That if the Legislature by subsequent enactment consolidates agencies, boards or functions, the appropriate secretary may transfer the funds formerly appropriated to the agency, board or function in order to implement consolidation. The authority to transfer funds under this section shall expire on June 30, 2010;

(8) Enter into contracts or agreements requiring the expenditure of public funds and authorize the expenditure or obligation of public funds as authorized by law: Provided, That the powers granted to the secretary to enter into contracts or agreements and to make expenditures or obligations of public funds under this provision shall not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;

(9) Acquire by lease or purchase property of whatever kind or character and convey or dispose of any property of whatever kind or character as authorized by law: Provided, That the powers granted to the secretary to lease, purchase, convey or dispose of such property shall be exercised in accordance with the provisions of §5A-3-1 et seq., §5A-10-1 et seq. and §5A-11-1 et seq. of this code: Provided, however, That the powers granted to the secretary to lease, purchase, convey or dispose of such property shall not exceed or be interpreted as authority to exceed the powers granted by the Legislature to the various commissioners, directors or board members of the various departments, agencies or boards that comprise and are incorporated into each secretary's department under this chapter;

(10) Conduct internal audits;

(11) Supervise internal management;

(12) Promulgate rules, as defined in §29A-1-2 of this code, to implement and make effective the powers, authority and duties granted and imposed by the provisions of this chapter in accordance with the provisions of chapter 29A of this code;

(13) Grant or withhold written consent to the proposal of any rule, as defined in §29A-1-2 of this code, by any administrator, agency or board within the department. Without written consent, no proposal for a rule shall have any force or effect;

(14) Delegate to administrators the duties of the secretary as the secretary may deem appropriate, from time to time, to facilitate execution of the powers, authority and duties delegated to the secretary; and

(15) Take any other action involving or relating to internal management not otherwise prohibited by law.

(b) The secretaries of the departments hereby created shall engage in a comprehensive review of the practices, policies and operations of the agencies and boards within their departments to determine the feasibility of cost reductions and increased efficiency which may be achieved therein, including, but not limited to, the following:

(1) The elimination, reduction and restriction of the state's vehicle or other transportation fleet;

(2) The elimination, reduction and restriction of state government publications, including annual reports, informational materials and promotional materials;

(3) The termination or rectification of terms contained in lease agreements between the state and private sector for offices, equipment and services;

(4) The adoption of appropriate systems for accounting, including consideration of an accrual basis financial accounting and reporting system;

(5) The adoption of revised procurement practices to facilitate cost-effective purchasing procedures, including consideration of means by which domestic businesses may be assisted to compete for state government purchases; and

(6) The computerization of the functions of the state agencies and boards.

(c) Notwithstanding the provisions of subsections (a) and (b) of this section, none of the powers granted to the secretaries herein shall be exercised by the secretary if to do so would violate or be inconsistent with the provisions of any federal law or regulation, any federal-state program or federally delegated program or jeopardize the approval, existence or funding of any program.

(d) The layoff and recall rights of employees within the classified service of the state as provided in §29-6-10(5) and §29-6-10(6), of this code shall be limited to the organizational unit within the agency or board and within the occupational group established by the classification and compensation plan for the classified service of the agency or board in which the employee was employed prior to the agency or board's transfer or incorporation into the department: Provided, That the employee shall possess the qualifications established for the job class. The duration of recall rights provided in this subsection shall be limited to two years or the length of tenure, whichever is less. Except as provided in this subsection, nothing contained in this section shall be construed to abridge the rights of employees within the classified service of the state as provided in §29-6-10 and §29-6-10a of this code.

(e) Notwithstanding any other provision of this code to the contrary, the secretary of each department with authority over programs which have an impact on the delivery of health care services in the state or are payors for health care services or are payors for prescription drugs, including, but not limited to, the Public Employees Insurance Agency, the Department of Health and Human Resources, the Bureau of Senior Services, the Children's Health Insurance Program, the Health Care Authority, the Office of the Insurance Commissioner, the Division of Corrections, the Division of Juvenile Services, the Regional Jail and Correctional Facility Authority, state colleges and universities, public hospitals, state or local institutions including nursing homes and veterans' homes, the Division of Rehabilitation Services, public health departments, the Bureau for Medical Services and other programs, which have an impact on the delivery of health care services or are payors for health care services or are payors for prescription drugs, in West Virginia shall cooperate with the Governor's Office of Health Enhancement and Lifestyle Planning established pursuant to article twenty-nine-h, chapter sixteen of this code for the purpose of improving the health care delivery services in West Virginia for any program over which they have authority.


§5F-2-7. Interdepartmental transfer of permanent state employees.

(a) A department secretary may enter into a memorandum of understanding with another department secretary to transfer a permanent state employee from a position that is to be consolidated or eliminated, to a funded vacant position in another department, in accordance with the provisions of this section and the law. To support the transfer of the employee, a department secretary may also transfer furniture and equipment, except motor vehicles and any assets purchased by designated funds for specific uses and purposes, the removal of which is prohibited by law or would jeopardize federal funds, grants or other funding sources.

(b) The transferred employee shall receive the same level of benefits and rate of compensation or higher, and shall retain the same level of seniority.

(c) An employee shall be given notice of the proposed transfer at least fifteen days prior to the transfer. During the notice period, an affected employee may agree to be voluntarily transferred.

(d) If an employee does not volunteer to be transferred, then an involuntary transfer may be ordered. An involuntary transfer shall begin with the least senior permanent employee who qualifies for the position.

(e) A classified employee who is transferred shall retain his or her classified status: Provided, That any transfer shall be made in accordance with the law.

(f) An involuntary transfer may be rejected by an employee if the involuntary transfer would require the employee to travel thirty miles or more, one way, than the distance the employee currently travels from his or her current job site.

(g) An employee who qualifies for and chooses to reject a transfer shall be laid off in accordance with the law.

(h) Nothing in this section shall abridge any other rights provided by law.

(i) Prior to December 31, 2005, the Division of Personnel shall promulgate an emergency rule in accordance with the provisions of §29A-3-1 et seq. of this code, to effectuate the provisions of this section. The provisions of this section and the rules promulgated pursuant to this section shall apply to all changes made to this article during the 2018 Regular Session of the Legislature.  The Division of Personnel shall make any necessary changes to the rules authorized by this section to effectuate those changes.  Any necessary changes to the rules shall be filed as an emergency rule in accordance with the provisions of §29A-3-1 et seq. of this code.

(j) The Division of Personnel is authorized to promulgate legislative rules in accordance with the provisions of §29A-3-1 et seq. of this code, to effectuate the provisions of this section.

(k) Annually, on or before January 1, the Division of Personnel shall report to the Joint Committee on Government and Finance, on all interdepartmental employee transfers, including but not limited to, voluntary and involuntary transfers, furniture and equipment transfers, and the departments involved in the transfers.


ARTICLE 3. FUTURE REORGANIZATION; SEVERABILITY.


§5F-3-1. Recommendations for further reorganization.

The Governor shall submit to the Legislature Joint Committee on Government and Finance on or before January 1, 1991 June 30, 2019, a report setting forth the reorganization implemented by executive action pursuant to this chapter and resulting cost savings as determined by the Governor, any recommendations for further reorganization requiring legislative action and drafts of recommended legislation to implement the reorganization requiring legislative action.


§5F-3-2. Operative dates.

The provisions of this chapter shall become operative as to any department created in §5F-1-2 of this code upon the appointment of the secretary of such department on July 1, 2019.

CHAPTER 6. GENERAL PROVISIONS RESPECTING OFFICERS.


ARTICLE 7. COMPENSATION AND ALLOWANCES.


§6-7-2a. Terms of certain appointive state officers; appointment; qualifications; powers and salaries of officers.


(a) Each of the following appointive state officers named in this subsection shall be appointed by the Governor, by and with the advice and consent of the Senate. Each of the appointive state officers serves at the will and pleasure of the Governor for the term for which the Governor was elected and until the respective state officers’ successors have been appointed and qualified. Each of the appointive state officers are subject to the existing qualifications for holding each respective office and each has and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each office.

The annual salary of each named appointive state officer is as follows:

Commissioner, Division of Highways, $92,500; Commissioner, Division of Corrections, $80,000; Director, Division of Natural Resources, $75,000; Superintendent, State Police, $85,000; Commissioner, Division of Banking, $75,000; Commissioner, Division of Culture and History, $65,000; Commissioner, Alcohol Beverage Control Commission, $75,000; Commissioner, Division of Motor Vehicles, $75,000; Director, Human Rights Commission, $55,000; Commissioner, Division of Labor, $70,000; prior to July 1, 2011, Director, Division of Veterans Affairs, $65,000; Chairperson, Board of Parole, $55,000; members, Board of Parole, $50,000; members, Employment Security Review Board, $17,000; and Commissioner, Workforce West Virginia, $75,000. Secretaries of the departments shall be paid an annual salary as follows: Health and Human Resources and Compliance, $95,000: Provided, That effective July 1, 2013, the Secretary of the Department of Health and Human Resources shall be paid an annual salary not to exceed $175,000 Human Services, $95,000; Healthcare Facilities, $95,000; Transportation, $95,000: Provided, however, That if the same person is serving as both the Secretary of Transportation and the Commissioner of Highways, he or she shall be paid $120,000; Revenue, $95,000; Military Affairs and Public Safety, $95,000; Administration, $95,000; Education and the Arts, $95,000; Commerce, $95,000; Veterans’ Assistance, $95,000; and Environmental Protection,$95,000: Provided further, That any officer specified in this subsection whose salary is increased by more than $5,000 as a result of the amendment and reenactment of this section during the 2011 regular session of the Legislature shall be paid the salary increase in increments of $5,000 per fiscal year beginning July 1, 2011, up to the maximum salary provided in this subsection.

(b) Each of the state officers named in this subsection shall continue to be appointed in the manner prescribed in this code and shall be paid an annual salary as follows:

Director, Board of Risk and Insurance Management, $80,000; Director, Division of Rehabilitation Services, $70,000; Director, Division of Personnel, $70,000; Executive Director, Educational Broadcasting Authority, $75,000; Secretary, Library Commission, $72,000; Director, Geological and Economic Survey, $75,000; Executive Director, Prosecuting Attorneys Institute, $80,000; Executive Director, Public Defender Services, $70,000; Commissioner, Bureau of Senior Services, $75,000; Executive Director, Women’s Commission, $45,000; Director, Hospital Finance Authority, $35,000; member, Racing Commission, $12,000; Chairman, Public Service Commission, $85,000; members, Public Service Commission, $85,000; Director, Division of Forestry, $75,000; Director, Division of Juvenile Services, $80,000; Executive Director, Regional Jail and Correctional Facility Authority, $80,000 and Executive Director of the Health Care Authority, $80,000.

(c) Each of the following appointive state officers named in this subsection shall be appointed by the Governor, by and with the advice and consent of the Senate. Each of the appointive state officers serves at the will and pleasure of the Governor for the term for which the Governor was elected and until the respective state officers’ successors have been appointed and qualified. Each of the appointive state officers are subject to the existing qualifications for holding each respective office and each has and is hereby granted all of the powers and authority and shall perform all of the functions and services heretofore vested in and performed by virtue of existing law respecting each office.

The annual salary of each named appointive state officer shall be as follows:

Commissioner, State Tax Division, $92,500; Insurance Commissioner, $92,500; Director, Lottery Commission, $92,500; Director, Division of Homeland Security and Emergency Management, $65,000; and Adjutant General, $125,000.

(d) No increase in the salary of any appointive state officer pursuant to this section may be paid until and unless the appointive state officer has first filed with the State Auditor and the Legislative Auditor a sworn statement, on a form to be prescribed by the Attorney General, certifying that his or her spending unit is in compliance with any general law providing for a salary increase for his or her employees. The Attorney General shall prepare and distribute the form to the affected spending units.

CHAPTER 8. MUNICIPAL CORPORATIONS.


ARTICLE 19. MUNICIPAL AND COUNTY WATERWORKS AND ELECTRIC POWER SYSTEMS.


§8-19-18. Additional and alternative method for constructing or improving and for financing waterworks or electric power system; cumulative authority.

This article shall, without reference to any other statute or charter provision, be deemed full authority for the acquisition, construction, establishment, extension, equipment, additions, betterment, improvement, repair, maintenance and operation of or to a waterworks or electric power system or for the construction of any additions, betterments, improvements, repairs, maintenance or operation of or to an existing electric power system as herein provided and for the issuance and sale of the bonds or the alternative methods of financing by this article authorized, and shall be construed as an additional and alternative method therefor and for the financing thereof, and no petition, referendum or election or other or further proceeding with respect to any such undertaking or to the issuance or sale of bonds or the alternative methods of financing under the provisions of this article and no publication of any resolution, ordinance, order, notice or proceeding relating to any such undertaking or to the issuance or sale of such bonds or the alternative methods of financing shall be required, except as prescribed by this article, any provisions of other statutes of the state to the contrary notwithstanding: Provided, That all functions, powers and duties of the state division of health Department of Health and Compliance shall remain unaffected by this article.

This article shall be construed as cumulative authority for any undertaking herein authorized, and shall not be construed to repeal any existing laws with respect thereto.


CHAPTER 9. REORGANIZATION OF THE DEPARTMENT OF HEALTH AND HUMAN RESOURCES.


ARTICLE 1. LEGISLATIVE PURPOSE.

§9-1-101. Legislative findings.

(a) The Legislature finds that it is necessary to reorganize the West Virginia Department of Health and Human Resources.  The department was first created as the state department of public assistance by chapter one, Acts of the Legislature, first extraordinary session, 1936, and later reconstituted as the state department of welfare by chapter one hundred ten, Acts of the Legislature, regular session, 1961. 

(b) The Legislature finds that the state provides a number of assistance programs which are established with the purpose of helping the citizens of the state who through the misfortunes of life are in need of assistance and encouragement.  These services consist of monetary and economic assistance, medical assistance, services available to families and children in distress and regulation of healthcare and medical services. 

(c) The department and its predecessors were created to provide these services, however, the department has grown into an unmanageable bureaucracy.  This growth has resulted in the delivery of services to the residents of this state in an inferior manner. 


§9-1-102.  Reorganization; effective date; transition plans.


(a) Effective July 1, 2019, the Department of Health and Human Resources shall be reorganized into four separate entities:  The Department of Health and Compliance, the Department of Healthcare Facilities; the Inspector General and the Department of Human Services.  Each department shall have the entities prescribed to it as set forth in §5F-2-1 et seq. and elsewhere in this code.  The functions, powers and duties of each department shall be as set forth in this chapter. It is the intention of the Legislature in developing these new entities that they be developed and operate as much as practical and possible within the current budget of the Department of Health and Human Resources.

(b) The Secretary of the Department of Health and Human Resources shall develop a plan by September 1, 2018, for assigning and allocating existing employees among the four entities and submit the plan to the Division of Personnel, the Governor and the Joint Committee on Government and Finance.  The purpose of this plan is to consolidate job functions of current employees of the Department of Health and Human Resources, where possible, and assign current employees among the four newly created entities.  The plan should also provide for administrative functions such as internal personnel matters, internal purchasing matters, legal matters, client/customer service matters, agency media issues and any other function not listed in this subsection to be accomplished by allocating existing employees or sharing employees among these four entities in an attempt to remain as revenue neutral as possible. Each of the secretaries of the newly created departments is granted specific authority to enter into agreements and memorandums of understanding among the four entities to share costs, employees and functions to remain as much as possible within the current budget allocation.

(c) Included in the plan as set forth in subsection (b) of this section shall be any recommendation which indicates that functions may not be shared among the four entities, recommends or requires a newly created position or hiring additional personnel shall contain a written justification which:

(1) Details the need for the position;

(2) Offers and explanation as to why the function cannot be shared between entities;

(3) Details why the functions of the position cannot be accomplished by transferring or utilizing existing employees;

(4) Sets out salary, job duties and requirements, education and background requirements, to whom they will report; and

(5) Indicates an internal funding source to pay the newly created position beyond an additional legislative appropriation. 

(d) The Secretary of the Department of Health and Human Resources shall develop and implement a plan for the transfer of all functions of the Department of Health and Human Resources to the appropriate entity of the four entities created by this chapter. The Secretary of the Department of Health and Human Resources shall consider as part of this plan any existing function of the Department of Health and Human Resources which may be privatized to make the function more accessible and responsive to the public and more cost effective to the state. The plan shall be prepared in as revenue neutral a manner as possible.  It shall be submitted in writing to the Joint Committee on Government and Finance, the Governor, the Secretary of the Department of Administration and the Division of Personnel. This plan shall be submitted no later than January 1, 2019.  The plan shall include proposals for the following:

(1) As much as possible, a means to make the transfer of all functionality of the Department of Health and Human Resources revenue neutral;

(2) A plan to transfer all existing and ongoing functions of the Department of Health and Human Resources to the appropriate department; including rulemaking authority;

(3) Functions which may be privatized to increase efficiency and potentially lower costs.

(4) A means to allow the Inspector General to function as an it is intended in this chapter as an investigative and fraud management unit across the Department of Healthcare Facilities, the Department of Health and Compliance and the Department of Human Services;

(5) Notwithstanding any provision of the code to the contrary, to provide for the continued ability to transfer funds by agreement among entities of the four entities set forth in this chapter;  

(6) Closing out and transferring existing budget allocations, if necessary;

(7) A means of developing agreements and memorandum of understanding between the four entities to share space, supplies, duties, employees and personnel, administrative functions, data and information, common policies and procedures and any other matters which may be performed jointly among the four entities;

(8) A transition plan developed in conjunction with the Division of Personnel for the transfer of employees to the appropriate department;

(9) In consultation with the Department of Administration, discontinuation of use of the current building including termination of any lease or rental agreements, if necessary;

(10) In consultation with the Department of Administration, disposition of all state owned or leased office furniture and equipment, including any state-owned vehicles, if necessary;

(11) Notwithstanding any provisions of this code to the contrary, the ability to exchange data and information as necessary for the proper operation and functionality of the four entities created in this chapter;

(12) Transition to appropriate entities or destruction of hard and electronic copies of files; and

(13) Any other matters which would effectively transfer all functions of the Department of Health and Human Resources.


§9-1-103. Legislative Intent; continuation of existing statutory provisions; no increase in funding obligations.

In restructuring the Department of Health and Human Resources during the regular session of the Legislature in the year 2018, it is intended by the Legislature that each specific existing function of the Department of Health and Human Resources continue and that modifications to the statutory authority of the Department of Health and Human Resources be continued in the four newly created entities and that substantively similar prior statutory provisions will be construed as continuing the intended meaning of the corresponding prior statutory provisions and any existing judicial interpretation of the prior statutory provisions. It is not the intent of the Legislature, by restructuring the Department of Health and Human Resources during the regular session of the Legislature in the year 2018 to alter the substantive law of this state as it relates to powers and duties assigned to the Department of Health or Human Resources or to increase or enlarge any funding obligation of any spending unit of the state.


§9-1-104. Forms; no increase of funding obligations to be construed.

(a) None of the newly created entities are required to change any form or letter that contains a citation to this code that is changed or otherwise affected by the changes to this chapter, chapter 16 of this code, or to chapter 27 of this code during the 2018 regular session of the Legislature unless specifically required by a provision of this code.

(b) No modification to any provision of this chapter, chapter 16 of this code, or chapter 27 of this code during the 2018 regular session of the Legislature may be construed to increase or enlarge any funding obligation of any spending unit of the state.


ARTICLE 2. DEPARTMENT OF HEALTH AND COMPLIANCE.

PART ONE. DEFINED WORDS AND PHRASES.

§9-2-101. Definitions.


(a) As used in this article:

“Commissioner” means either the Commissioner of the Bureau for Public Health or the Commissioner of the Bureau for Child Support Enforcement as the context dictates. 

"Department" means the Department of Health and Compliance.

"Federal assistance" means and includes all forms of aid, care, assistance and services to or on behalf of persons, which are authorized by, and who are authorized to receive the same under any act of Congress for distribution through the department, the cost of which is paid entirely out of federal appropriations.

"Federal-state assistance" means and includes: 

(A) All forms of aid, care, assistance and services to, or on behalf of, persons, which are authorized by, and who are authorized to receive the same under and by virtue of, subchapters one, four, five, ten, fourteen, sixteen, eighteen and nineteen, chapter seven, Title 42, United States Code;

(B) All forms of aid, care, assistance and services to persons, which are authorized by, and who are authorized to receive the same under and by virtue of, any act of Congress, other than the federal social security act, as amended, for distribution through the department to recipients of any form of aid, care, assistance and services to persons designated or referred to in paragraph (A) and to recipients of state assistance.

“Person” means any individual, corporation, association, partnership, proprietor, agent, assignee or entity.

"Secretary" means the Secretary of the Department of Health and Compliance.

"State assistance" means all forms of aid, care, assistance, services and general relief made possible solely out of state, county and private appropriations to, or on behalf of, indigent persons.

(b) All other definitions relative to public health are those set out in §16-1-1 et seq. of this code.

(c) All other definitions relative to behavioral health are those set out in §27-1-1 et seq. of this code.


PART TWO.  GENERAL PROVISIONS. 

§9-2-201.  Creation of department.


(a) The Legislature hereby creates the Department of Health and Compliance. In creating this department, the Legislature intends to continue on a reorganized basis state compliance programs previously administered by the Department of Health and Human Resources and its predecessor agency.  The purpose of this agency is to regulate public health programs, provide administrative oversight of specified regulatory boards, administration of certain licensed facilities, enforcement of familial support obligations and education to the citizens of this state.  These changes shall become effective July 1, 2019.

(b) The rules of the Secretary of the Department of Health and Human Resources, the Bureau for Public Health, the Bureau for Child Support Enforcement and the West Virginia Health Care Authority shall remain in effect until they are amended or rescinded by the Secretary of the Department of Health and Compliance.


§9-2-202.  Department agencies.


(a) The Department of Health and Compliance shall consist of the Bureau for Public Health set forth in chapter 16 of this code, the Bureau Child Support Enforcement, set forth in chapter 48 of this code and the Health Care Authority set forth in chapter 16 of this code. All functions, powers, duties, employees and responsibilities of these entities shall transfer to the Department of Health and Compliance on the first day of July, 2019.

(b) The following regulatory boards, as provided in chapter 30 of this code, shall remain as autonomous entities but may be subject to administrative oversight of the Department of Health and Compliance for purposes of consistency of service delivery:

(1) Acupuncture Board provided in §30-36-1 et seq. of this code;

(2) Board of Chiropractic provided in §30-16-1 et seq. of this code;

(3) Board of Dentistry provided in §30-4-1 et seq. of this code including the following ancillary duties of the Board of Dentistry:

(A) Administration of anesthesia by dentist provided in §30-4A-1 et seq. of this code; and

(B) Dental laboratory services provided in §30-4B-1 et seq. of this code.

(4) Board of Directors for the West Virginia Center for Nursing provided in §30-7B-1 et seq. of this code;

(5) Board of Examiners in Counseling provided in §30-31-1 et seq. of this code;

(6) Board of Examiners for Licensed Practical Nurses provided in §30-7A-1 et seq. of this code;

(7) Board of Examiners of Psychologist provided in §30-21-1 et seq. of this code;

(8) Board of Examiners for Registered Professional Nurses provided in §30-7-1 et seq. of this code including the following ancillary duties of the Board of Examiners for Registered Professional Nurses:

(A) Dialysis technicians provided in §30-7C-1 et seq. of this code;

(B) Medication assisted persons provided in §30-7D-1 et seq. of this code;

(C) Nurse health programs provided in §30-7E-1 et seq. of this code; and

(D) Nurse midwives provided in §30-15-1 et seq. of this code.  

(9) Board of Examiners for Speech-Language Pathology and Audiology provided in §30-32-1 et seq. of this code;

(10) Board of Licensed Dieticians provided in §30-35-1 et seq. of this code;

(11) Board of Medicine provided in §30-3-1 et seq. of this code and the Board of Osteopathic Medicine provided in §30-14-1 et seq of this code of including the following ancillary duties of the Board of Medicine and the Board of Osteopathic Medicine:

(A) Management of pain provided in §30-3A-1 et seq. of this code;

(B) Physician health programs provided in §30-3D-1 et seq. of this code; and

(C) Physician assistants practice provided in §30-3E-1 et seq. of this code;

(12) Board of Optometry provided in §30-8-1 et seq. of this code including the ancillary duties of the Board of Optometry relative to eye care consumer protection provided in §30-8A-1 et seq. of this code;

(13) Board of Pharmacy provided in §30-5-1 et seq. of this code;

(14) Board of Physical Therapy provided in §30-20-1 et seq. of this code including the ancillary duties of the Board of Physical Therapy relative to athletic trainers provided in §30-20A-1 et seq. of this code;

(15) Board for Respiratory Care provided in §30-34-1 et seq. of this code;

(16) Massage Therapy Licensure Board provided in §30-37-1 et seq. of this code;

(17) Medical Imaging and Radiation Therapy Technology Board of Examiners provided in §30-23-1 et seq. of this code;

(18) Nursing Home Administrators Licensing Board provided in §30-25-1 et seq. of this code; and

(19) Board of Social Work provided in §30-30-1 et seq. of this code.

(c) The following functions shall also transfer to the Department of Health and Compliance effective July 1, 2019:

(1) Health Care peer review organization protections provided in §30-3C-1 et seq. of this code; and

(2) Qualification for Armed Forces Health Technicians for Civilian Health Occupations provided in §30-24-1 et seq. of this code.


PART THREE. ORGANIZATION; POWERS AND DUTIES OF THE DEPARTMENT AND SECRETARY.

§9-2-301.  Responsibility and powers of department; information and data to be supplied by other agencies.


(a) The department is charged with administering public health, healthcare compliance, administrative oversight of specified regulatory boards, licensing of certain juvenile and child care facilities and enforcement of familial support obligations. This shall include: 

(1) All powers, not inconsistent with state law, as may be necessary for this state to obtain maximum federal funds made available for federal-state assistance within whatever limits or restrictions may be imposed by, or may exist by reason of the amount of state funds appropriated for such under the state's budget act and supplementary appropriation acts; and

(2) All powers, not inconsistent with state law, as may be necessary for the disbursement and distribution of services to those persons qualified therefor in as prompt, fair, orderly, efficient and economical manner as possible.

(b) The department is charged with ensuring healthy environments for clients, patients and residents within hospitals and other healthcare facilities by promoting the quality services and high standards of care that exist when facilities are in compliance with state licensure rules and federal certification regulations. 

(c) Notwithstanding any other provision of this code to the contrary, each department, agency, commission or board of state government shall make available to the department such information and data as each department, agency, commission or board may collect about any applicant for, or recipient of, any type of federal or state public health or familial support services upon such terms as may be prescribed by the Governor, if the information and data would be relevant in determining whether the applicant or recipient is eligible for any public or familial support services, and after the information and data have been obtained by the department, the same shall be used only by the department in carrying out and discharging its powers, duties and responsibilities.

§9-2-302.  Secretary of the department; qualifications.


(a) The administrative head of the department is the secretary, who shall be appointed and compensated, as provided by §6-7-1 et seq. of this code.

(b) Before entering upon the duties of his or her office, the secretary shall take and subscribe to the oath of office prescribed by section five, article four of the state Constitution.

(c) The secretary may not be a candidate for, or hold, any other public office or public employment or be a member or officer of any political party committee, or serve as an election official, or engage in any political activity, other than to vote, in an election.  Any violation by the secretary of the provisions of this subsection shall automatically vacate his or her appointment as secretary.


§9-2-303.  Organization of department.


(a) The department shall consist of the Bureau for Public Health, the Bureau for Child Support Enforcement and the Health Care Authority and the.  Various regulatory boards set forth in §9-2-202 of this code shall remain as autonomous entities but may be subject to administrative oversight of the Department of Health and Compliance for purposes of consistency of service delivery.

(b) Consistent with the provisions of §5F-2-1 of this code, the secretary may organize the department into such other offices, divisions, agencies and other administrative units as he or she sees as necessary.


§9-2-304. Acceptance of federal-state assistance and federal assistance.


The state and the department assent to the purposes of federal-state assistance and federal assistance, accepts federal appropriations and other forms of assistance made under or pursuant thereto, and authorizes the receipt of such appropriations into the state Treasury and the receipt of other forms of assistance by the department for expenditure, disbursement, and distribution by the department in accordance with the provisions of this chapter and the conditions imposed by applicable federal laws, rules and regulations.


§9-2-305.  Powers and duties of secretary.


Within limits of state appropriations and federal grants and subject to provisions of state and federal laws and regulations, the secretary, in addition to all other powers, duties and responsibilities granted and assigned to that office in this chapter and elsewhere by law, is authorized to:

(1) Promulgate, amend, revise and rescind department rules respecting the organization and government of the department and the execution and administration of those powers, duties and responsibilities granted and assigned by this chapter and elsewhere by law to the department and the secretary.

(2) Promulgate, amend, revise and rescind department rules and regulations respecting qualifications for receiving public health and behavioral health services consistent with or permitted by federal laws, rules and policies, but not inconsistent with state law.

(3) Promulgate, amend, revise and rescind department rules and regulations respecting the various entities within the department.  These rules shall include, but are not limited to:

(A) Operation of the certificate of need program;

(B) Grants and financial assistance to rural health systems and hospitals; and

(C) Quality control.

(4) For the protection of applicants and recipients of public health and familial support services, the department shall be required to establish legislative rules governing the custody, use and preservation of the records, papers, files and communications of the department.

(5) Obtain by purchase or lease grounds, buildings, office or other space, equipment, facilities and services as may be necessary for the execution and administration of those powers, duties and responsibilities granted and assigned by this chapter and elsewhere by law to the department and the secretary.

(6) Sign and execute in the name of the state by the Department of Health and Compliance any contract or agreement with the federal government or its agencies, other states, political subdivisions of this state, corporations, associations, partnerships or individuals: Provided, That the provisions of §5A-3-1 et seq. of this code are followed.

(7) Sign and execute a contract to implement independent professional consultant contracts for department programs: Provided, That the provisions of §5A-3-1 et seq. of this code are followed.

(8) Establish such special funds as may be required by the federal Social Security Act, as amended, or by any other Act or Acts of Congress, in order for this state to take full advantage of the benefits and provisions thereof relating to the federal-state assistance and federal assistance programs administered by the department and to make payments into and disbursements out of any such special fund or funds in accordance with the requirements of the federal Social Security Act, as amended, or any other Act or Acts of Congress, and in accordance with applicable state law and the objects and purposes of this chapter. In addition, the Department of Health and Compliance, through the secretary, is hereby authorized to accept any and all gifts or grants, whether in money, land, services or materials, which gift or gifts, if in the form of moneys, shall be placed in a separate fund and expended solely for the purpose of public health and behavioral health programs. No part of this special fund shall revert to the General Revenue Funds of this state. No expenses incurred pursuant to this special fund shall be a charge against the General Funds of this state.

(9) Provide at department expense a program of continuing professional, technical and specialized instruction for the personnel of the department.

(10) Pay from available funds all or part of the reasonable expenses incurred by a person newly employed by the department in moving his household furniture, effects and immediate family from his or her place of residence in this state to his or her place of employment in this state; and to pay from available funds all or part of the reasonable expenses incurred by a department employee in moving his or her household furniture, effects and immediate family as a result of a reassignment of the employee which is considered desirable, advantageous to and in the best interests of the state, but no part of the moving expenses of any one such employee shall be paid more frequently than once in twelve months or for any movement other than from one place of employment in this state to another place of employment in this state.

(11) Establish a program to provide reimbursement to employees of the department whose items of personal property, as defined by the department by policy, are damaged during the course of employment or other work-related activity as a result of aggressive behavior by a client or patient receiving services from the department: Provided, That such reimbursement is limited to a maximum amount of $250.00 per claim.

(12) If necessary, prepare and submit state plans which will meet the requirements of federal laws, rules governing federal-state assistance and federal assistance and which are not inconsistent with state law.

(13) Provide by rules, consistent with requirements of applicable federal laws and rules, application forms and application procedures for the various classes of public health and familial support services.

(15) (A) Serve, by certified mail or personal service, an administrative subpoena on any person, corporation, partnership, financial institution, labor organization or state agency for an appearance or for production of documents necessary for administration of the public assistance programs of the department.  In the case of disobedience to the subpoena, the secretary may invoke the aid of any circuit court in requiring the appearance or production of records and documents.

(B) Apply to the circuit court of any county in which any hearing is to be held, or the circuit court in which the subpoena or subpoena duces tecum is to be served, or the judge of either such court in vacation, for the issuance of a subpoena or subpoena duces tecum to compel the attendance of witnesses or the production of documents, before any hearing or administrative tribunal convened to consider suspension or termination of any person or corporation from providing services under the public assistance programs administered by the department. 

(15) Delegate to the personnel of the department all powers and duties vested in the secretary, except the power and authority to sign contracts and agreements.

(16) Make such reports in such form and containing such information as may be required by applicable federal laws and rules respecting federal-state assistance and federal assistance.

(17) Invoke any legal, equitable or special remedies for the enforcement of the provisions of this article.


§9-2-306.  Transfer of functions to secretary.


In addition to other duties assigned to the secretary in this article, effective July 1, 2019, the following functions as set out in the respective sections of the code shall become functions of the secretary.  Any reference in these sections to the Secretary of the Department of Health and Human Resources or the Director of Health means the Secretary of the Department of Health and Compliance:

(1) Uniform credentialing for health care practitioners as set forth in §16-1A-1 et seq. of this code;

(2) Skilled Nursing Facilities for Veterans of the United States Armed Forces as set forth in §16-1B-1 et seq. of this code;

(3) Health care provider transparency as set forth in §16-1C-1 et seq. of this code;

(4) Certificate of need as set forth in §16-2D-1 et seq. of this code;

(5) Provider Sponsored Networks as set forth in §16-2L-1 et seq. of this code;

(6) Neonatal abstinence centers as set forth in §16-2N-1 et seq. of this code; 

(7) Clinical laboratory quality assurance as set forth in §16-5J-1 et seq. of this code;

(8) Licensure of radon mitigations, testers, contractors and laboratories as set forth in §16-34-1 et seq. of this code;

(9) Clearance for Access: Registry and Employment Screening Act as set forth in §16-49-1 et seq. of this code;

(10) Establishing additional substance abuse treatment facilities as set forth in §16-53-1 et seq. of this code; and

(11) The West Virginia Health Information Network as set forth in §16-29G-1 et seq. of this code.


§9-2-307.  Attorney General and prosecuting attorneys to render legal services to secretary and commissioner.


The Attorney General, the Attorney General’s assistants, and the prosecuting attorneys of the various counties shall render to the secretary and the commissioner of the department, without additional compensation, the legal services as the secretary and the commissioner of the department shall require of them in the discharge of their duties.  this section does not prohibit the department from developing plans for cooperation with courts, prosecuting attorneys, and other law-enforcement officials in a manner as to permit the state and its citizens to obtain maximum fiscal benefits under federal laws, rules and regulations.


laws, rules and regulations.


ARTICLE 3.  DEPARTMENT OF HUMAN SERVICES.

PART ONE.   DEFINED WORDS AND PHRASES. 

§9-3-101. Definitions.


The following words as used in this article shall have the following meaning unless the context clearly indicates otherwise;

"Abuse" means the infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult or facility resident.

 "Adult protective services agency" means any public or nonprofit private agency, corporation, board or organization furnishing protective services to adults.

“Agency” means the Children’s Health Insurance Agency.

“Approved accounts” means any retirement account that the secretary has determined is not to be included as an asset in determining the eligibility of an individual for participation in the buy-in program.  Approved accounts may include, but not be limited to, private retirement accounts such as individual retirement accounts; other individual accounts; and employer-sponsored retirement plans such as 401(k) plans, Keogh plans and employer pension plans.

“Asset disregard” means, with regard to the state’s medical assistance program, disregarding any assets or resources in an amount equal to the insurance benefit payments that are made to, or on behalf of, an individual who is a beneficiary under a qualified long-term care insurance partnership policy.

"Assistance" means money payments, medical care, transportation and other goods and services necessary for the health or welfare of individuals, including guidance, counseling and other medical or public assistance services and shall include Federal-state assistance, federal assistance and state assistance.

"At-risk family" means a group of persons living in the same household, living below the federally designated poverty level, lacking the resources to become self-supporting and consisting of a dependent minor child or children living with a parent, stepparent or caretaker-relative; an "at-risk family" may include an unmarried minor parent and his or her dependent child or children who live in an adult-supervised setting.

“Autism spectrum disorder” means any pervasive developmental disorder, including autistic disorder, Asperger’s Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.

“Basic coverage group” means an optional coverage group as defined by the Ticket to Work and Work Incentives Improvement Act of 1999.

"Benefits" means money payments, goods, services, or any other thing of value.

"Beneficiary" or "participant" means any parent, work eligible individuals or caretaker-relative in an at-risk family who receives cash assistance for himself or herself and family members.

“Board” means the Children’s Health Insurance Program Board.

“Board and Care Facility” means a residential setting where tow or more unrelated adults receive nursing services or personal care services. 

“Bureau” means:

(A) For purposes of part four of this article and part five of this article the term Bureau shall refer to the Bureau for Child and Family Services;

(B) For purposes of parts six, seven and eight of this article the term bureau shall refer to the Bureau for Economic Assistance; and

(C) For purposes of parts nine, ten, eleven, twelve, thirteen and fourteen of this article the term bureau shall refer to the Bureau for Medical Services.

“Caretaker-relative” means grandparents or other nonparental caretakers not included in the assistance group or receiving cash assistance directly.

 “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.

"Cash assistance" means temporary assistance for needy families.

"Claim" means an application for payment for goods or services provided pursuant to the medical programs of the Department of Human Services.

“Clinical trial” means a study that determines whether new drugs, treatments or medical procedures are safe and effective on humans.  To determine the efficacy of experimental drugs, treatments or procedures, a study is conducted in four phases including the following:

(A) Phase II:  The experimental drug or treatment is given to, or a procedure is performed on, a larger group of people to further measure its effectiveness and safety.

(B) Phase III:  Further research is conducted to confirm the effectiveness of the drug, treatment or procedure, to monitor the side effects, to compare commonly used treatments and to collect information on safe use.

(C) Phase IV:  After the drug, treatment or medical procedure is marketed, investigators continue testing to determine the effects on various populations and to determine whether there are side effects associated with long-term use.

“Commissioner” means:

(A) For purposes of child and family services as set forth in part four of this article and social services for adults as set forth in part five of this article the term commissioner shall refer to the Commissioner for the Bureau for Child and Family Services;

(B) For purposes of public and economic assistance as set forth in parts six, seven and eight of this article the term commissioner shall refer to the Commissioner for the Bureau for Economic Assistance; and

(C) For purposes of medical assistance as set forth in parts nine, ten, eleven, twelve, thirteen and fourteen of this article the commissioner shall refer to the Commissioner of the Bureau for Medical Services.

“Cooperative group” means a formal network of facilities that collaborate on research projects and have an established NIH-approved peer review program operating within the group.  This includes:

(A) The National Cancer Institute Clinical Cooperative Group;

(B) The National Cancer Institute Community Clinical Oncology Program;

(C) The AIDS Clinical Trial Group; and

(D) The Community Programs for Clinical Research in AIDS.

“Copayment” means a fixed fee to be paid by the patient at the time of each office visit, outpatient service or filling of prescriptions.

“Cost-sharing” means the eligible participant will participate in the cost of the program by paying the enrollment fee, monthly premiums and copayments if established by the department.

“Countable income” means income that does not exceed two hundred fifty percent of the federal poverty level.  For the purposes of this chapter, countable income does not include:

(A) The income of the individual’s spouse, parent or guardian with whom he or she resides; and

(B) Income disregarded under the state Medicaid plan’s financial methodology, including income disregarded pursuant to the federal supplemental security income program (42 U.S.C. §1382) as impairment-related work expenses.

“Countable resources” means earned and unearned income.  Countable resources do not include:

(A) Liquid assets of up to $5,000 for an individual;

(B) Liquid assets of up to $10,000 for a family;

(C) Retirement accounts; and

(D) Independence accounts.

“Department” means the Department of Human Services.

“Director” means the Director of the Children’s Health Insurance Agency.

“Disability” means a medically determinable physical or mental condition that:

(A) Can be expected to result in death or has lasted, or can be expected to last, for a continuous period of not less than twelve months; and

(B) Renders a person unable to engage in substantial gainful activity; and

(C) Is a disability defined by social security administration criteria and has been so determined as such by either the Social Security Administration or the department.

"Domiciled in this state" means being physically present in West Virginia accompanied by an intention to remain in West Virginia for an indefinite period of time, and to make West Virginia his or her permanent home.

"Education and training" means hours spent regularly attending and preparing for classes in any approved course of schooling or training.

“Eligible buy-in participant” means an individual who:

(A) Is a resident of the State of West Virginia;

(B) Has a disability as defined herein;

(C) Is at least sixteen years of age and less than sixty-five years of age;

(D) Is engaged in competitive employment, including self-employment or nontraditional work that results in remuneration at or above minimum wage in an integrated setting;

(E) Has countable resources that do not exceed the resource limits as defined in this chapter; and

(F) Has countable income that does not exceed the income limits as defined in this chapter.

"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 adult.

“Entity” means any corporation, association, partnership, limited liability company, or other legal entity.

“Enrollment fee” means a one-time fee to participate in the Medicaid buy-in program.

 "Essential community health service provider" means a health care provider that:

(A) Has historically served medically needy or medically indigent patients and demonstrates a commitment to serve low-income and medically indigent populations which constitute a significant portion of its patient population or, in the case of a sole community provider, serves medically indigent patients within its medical capability; and

(B) Either waives service fees or charges fees based on a sliding scale and does not restrict access or services because of a client's financial limitations. Essential community health service provider includes, but is not limited to, community mental health centers, school health clinics, primary care centers, pediatric health clinics or rural health clinics.

"Estate" means all real and personal property and other assets included within the individual's estate as defined in the state's probate law.

“FDA” means the federal Food and Drug Administration.

"Family assessments" means evaluation of the following: Work skills, prior work experience, employability, education and challenges to becoming self-sufficient such as mental health and physical health issues along with lack of transportation and child care.

"Facility resident" means an individual living in a nursing home or other facility, as that term is defined in this section.

"Federal assistance" means and includes all forms of aid, care, assistance and services to or on behalf of persons, which are authorized by, and who are authorized to receive the same under any act of Congress for distribution through the department, the cost of which is paid entirely out of federal appropriations.

“Federal benefit rate” means the amount of monthly federal or state benefits paid to persons with limited income and resources who are age sixty-five or older, blind or disabled.

“Federal poverty level” means the level of personal or family income below which one is classified as poor according to federal governmental standards, commonly referred to as the federal poverty guidelines which are issued and printed each year in the federal register.

"Federal-state assistance" means and includes: 

(A) All forms of aid, care, assistance and services to, or on behalf of, persons, which are authorized by, and who are authorized to receive the same under and by virtue of, subchapters one, four, five, ten, fourteen, sixteen, eighteen and nineteen, chapter seven, Title 42, United States Code;

(B) All forms of aid, care, assistance and services to persons, which are authorized by, and who are authorized to receive the same under and by virtue of, any act of Congress, other than the federal social security act, as amended, for distribution through the department to recipients of any form of aid, care, assistance and services to persons designated or referred to in paragraph (A) and to recipients of state assistance.

“Financial Exploitation” means the intentional misappropriation or misuse of funds or assets of another.

"General relief" means cash or its equivalent in services or commodities expended for care and assistance to an indigent person other than for care in a county infirmary, child shelter or similar institution.

"Incapacitated adult" 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.

"Income":

(1) For purposes of the West Virginia Works Act as set forth in this article income means money received by any member of an at-risk family which can be used at the discretion of the household to meet its basic needs.  Income does not include:

(A) Supplemental security income paid to any member or members of the at-risk family;

(B) Earnings of minor children;

(C) Payments received from earned income tax credit or tax refunds;

(D) Earnings deposited in an individual development account approved by the department;

(E) Any educational grant or scholarship income regardless of source; or

(F) Any moneys specifically excluded from countable income by federal law.

(2) For purposes of determining Medicaid eligibility by the Bureau for Medical Services as set forth in this article income means money earned from employment wages or self-employment earnings and unearned money received from any other source.

“Independence accounts” means department-approved accounts established with the department solely by funds paid from the earned income of an eligible buy-in participant to cover expenses necessary to enhance or maintain his or her independence or increase employment opportunities.  Approved expenditures from the funds may include:  Educational expenses; work-related expenses; home purchase or modification; transportation; medical expenses; assistive technology and related services; or for short-term living expenses in times of qualified emergencies as determined by the department.

"Indigent person" means any person who is domiciled in this state and who is actually in need as defined by department rules and has not sufficient income or other resources to provide for such need as determined by the department.

"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.

“Life-threatening condition” means a terminal condition or illness that according to current diagnosis has a high probability of death within two years, even with treatment with an existing generally accepted treatment protocol.

“Liquid assets” means cash or assets payable in cash on demand, including financial instruments that can be converted to cash within twenty working days.  National, state and local holidays are not working days.

“Long-term care insurance” means a policy described in §33-15A-4 of this code.

“Long-term care partnership program” means a qualified state long-term care insurance partnership as defined in 42 U.S.C. 1396, Section 1917(b) of the Social Security Act.

"Medicaid" means that assistance provided pursuant to a state plan implemented pursuant to the provisions of subchapter nineteen, chapter seven, Title 42, United States Code, as that chapter has been and may hereafter be amended.

"Medical services" means medical, surgical, dental and nursing services, and other remedial services recognized by law, in the home, office, hospital, clinic and any other suitable place, provided or prescribed by persons permitted or authorized by law to give such services; the services to include drugs and medical supplies, appliances, laboratory, diagnostic and therapeutic services, nursing home and convalescent care and such other medical services and supplies as may be prescribed by the persons.

“Member” means a policyholder, subscriber, insured, certificate holder or a covered dependent of a policyholder, subscriber, insured or certificate holder.

“Multiple project assurance contract” means a contract between an institution and the federal Department of Health and Human Services that defines the relationship of the institution to the federal Department of Health and Human Services and sets out the responsibilities of the institution and the procedures that will be used by the institution to protect human subjects.

“NIH” means the National Institutes of Health.

"Neglect" means:

(A) The failure to provide the necessities of life to an incapacitated adult or facility resident with intent to coerce or physically harm the incapacitated adult or resident; and

(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.

"Nonrecipient parent" means an adult or adults excluded or disqualified by federal or state law from receiving cash assistance.

"Nursing home" or "facility" means any institution, residence, intermediate care facility for the intellectually disabled, 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. of this code.

“Patient cost” means the routine costs of a medically necessary health care service that is incurred by a member as a result of the treatment being provided pursuant to the protocols of the clinical trial.  Routine costs of a clinical trial include all items or services that are otherwise generally available to beneficiaries of the insurance policies.  “Patient cost” does not include:

(A) The cost of the investigational drug or device;

(B) The cost of non-health care services that a patient may be required to receive as a result of the treatment being provided to the member for purposes of the clinical trial;

(C) Services customarily provided by the research sponsor free of charge for any participant in the trial;

(D) Costs associated with managing the research associated with the clinical trial including, but not limited to, services furnished to satisfy data collection and analysis needs that are not used in the direct clinical management of the participant;

(E) Costs that would not be covered under the participant’s policy, plan, or contract for non-investigational treatments; or

(F) Adverse events during treatment are divided into those that reflect the natural history of the disease, or its progression, and those that are unique in the experimental treatment.  Costs for the former are the responsibility of the payor, and costs for the later are the responsibility of the sponsor.  The sponsor shall hold harmless any payor for any losses and injuries sustained by any member as a result of his or her participation in the clinical trial.

“Person” means any individual, corporation, association, partnership, proprietor, agent, assignee or entity.

"Personal responsibility contract" means a written agreement entered into by the department and a beneficiary for purposes of participation in the West Virginia Works Program;

“Premium” means a monthly fee paid by an eligible buy-in participant to continue participation in the program.

"Program" means the West Virginia Children's Health Insurance Program.

"Provider" means any individual or entity furnishing goods or services pursuant to the programs of the Department of Human Services.  

 “Public assistance” means any type of assistance offered by the department pursuant to this article, chapter forty-eight of this code and chapter forty-nine of this code.

“Reasonable funeral service expenses” means expenses for services provided by a funeral director for the disposition of human remains.

"Recipient" means a person who applies for, and receives assistance from, the Department of Human Services.

"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 of this code.

"Secretary" means the Secretary of the Department of Human Services.

"Services" means nursing facility services, home and community-based services, and related hospital and prescription drug services for which an individual received Medicaid medical assistance.

"State assistance" means all forms of aid, care, assistance, services and general relief made possible solely out of state, county and private appropriations to, or on behalf of, indigent persons.

“State long-term care ombudsman” means an individual who meets the qualifications of chapter 16 of this code who is employed by the state Bureau for Senior Services to implement the state long-term care ombudsman program.

"State Medicaid agency" means the Bureau of Medical Services within the department that is the federally designated single state agency charged with administration and supervision of the state Medicaid program.

"Subsidized employment" means employment with earnings provided by an employer who receives a subsidy from the department for the creation and maintenance of the employment position.

"Support services" includes, but is not limited to, the following services:  Child care; Medicaid; transportation assistance; information and referral; resource development services which includes assisting families to receive child support and supplemental security income; family support services which includes parenting, budgeting and family planning; relocation assistance; and mentoring services.

"Temporary assistance for needy families" is the federal program funded under Part A, Title IV of the Social Security Act, codified at 42 U.S.C. §601, et. seq.

"Third-party" means an individual or entity that is alleged to be liable to pay all or part of the costs of a recipient's medical treatment and medical-related services for personal injury, disease, illness or disability, as well as any entity including, but not limited to, a business organization, health service organization, insurer, or public or private agency acting by, or on behalf of, the allegedly liable third-party.

"Transitional assistance" may include medical assistance, food stamp assistance, child care and supportive services as defined by the secretary and as funding permits.

"Two-parent family" means two parents with a common child residing in the same household and included in a common West Virginia Works grant payment or, two parents with a common child residing in the same home and one or both of the parents are "work eligible individuals", as that term is defined in this section, but are excluded from the West Virginia Works payments unless the exclusion is due to an exemption as provided in this article.

"Unit" means the Medicaid Fraud Control Unit established pursuant to this chapter.

"Unsubsidized employment" means employment with earnings provided by an employer who does not receive a subsidy from the department for the creation and maintenance of the employment position.

"Vocational-educational training" means organized educational programs, not to exceed twelve months for any individual, that are directly related to the preparation of individuals for employment in current or emerging occupations requiring training other than a baccalaureate or advance degree.

"Work" means unsubsidized employment, subsidized employment, work experience, community or personal development and education and training.

"Work eligible individual" means an adult or minor child head-of-household receiving assistance under the West Virginia Works Program or a nonrecipient parent living with a child receiving the assistance.

"Work experience" means a publicly assisted work activity, including work associated with the refurbishing of publicly assisted housing, performed in return for program benefits that provide general skills, training, knowledge and work habits necessary to obtain employment. This activity must be supervised daily and on an ongoing basis by an employer, work site sponsor or other responsible party.


PART TWO. GENERAL PROVISIONS. 

§9-3-201.  Creation of department.


(a) The Legislature creates the Department of Human Services.  In creating this department, the Legislature intends to continue on a reorganized basis state provided human services functions and behavioral health services previously administered by the Department of Health and Human Resources and its predecessor agency.  The purpose of this agency is to provide public assistance and human services to eligible persons.  These changes shall become effective July 1, 2019.

(b) The rules of the Secretary of the Department of Health and Human Resources related to the Bureau for Medical Services, the Children’s Health Insurance Program and any other provisions of this article shall remain in effect until they are amended or rescinded by the Secretary of the Department of Human Services.


§9-3-202.  Department agencies.


The Department of Human Services shall consist of the Bureau for Economic Assistance set forth in this chapter, the Bureau for Child and Family Services set forth in this chapter, the Bureau for Behavioral Health set forth in in of chapter twenty-seven of this code, the Bureau for Medical Services as set forth in §9-3-1 et seq. of this code and the Children’s Health Insurance Program as set forth in §9-3-1 et seq. of this code.  All functions, powers, duties, employees and responsibilities of these entities shall transfer to the Department of Human Services on the first day of July, 2019.  


PART. THREE. ORGANIZATION AND POWERS AND DUTIES OF THE DEPARTMENT AND SECRETARY.

§9-3-301.  Responsibility and powers of department; information and data to be supplied by other agencies.


(a) The department is charged with administering state programs which provide medical and public assistance, behavioral health services and child and family services. This shall include: 

(1) All powers, not inconsistent with state law, as may be necessary for this state to obtain maximum federal funds made available for federal-state public assistance within whatever limits or restrictions may be imposed by, or may exist by reason of the amount of state funds appropriated for such public assistance under, the state's budget act and supplementary appropriation acts;

(2) All powers, not inconsistent with state law, as may be necessary for the disbursement and distribution of medical and public assistance to those persons qualified therefor in as prompt, fair, orderly, efficient and economical manner as possible;

(3) Provide behavioral health services as set forth in chapter twenty-seven of this code; and

(4) Provide child and family welfare services as set forth in chapter forty-nine of this code.

(b) Notwithstanding any other provision of this code to the contrary, each department, agency, commission or board of state government shall make available to the department such information and data as each department, agency, commission or board may collect about any applicant for, or recipient of, any type of federal or state public assistance upon such terms as may be prescribed by the Governor, if the information and data would be relevant in determining whether the applicant or recipient is qualified or eligible for any public assistance, and after the information and data have been obtained by the department, the same shall be used only by the department in carrying out and discharging its powers, duties and responsibilities.


§9-3-302.  Secretary of the department; qualifications.


(a) The administrative head of the department is the secretary, who shall be appointed and compensated, as provided by §6-7-1 et seq. of this code.

(b) Before entering upon the duties of his or her office, the secretary shall take and subscribe to the oath of office prescribed by section five, article four of the state Constitution.

(c) The secretary may not be a candidate for, or hold, any other public office or public employment or be a member or officer of any political party committee, or serve as an election official, or engage in any political activity, other than to vote, in an election.  Any violation by the secretary of the provisions of this subsection shall automatically vacate his or her appointment as secretary.


§9-3-303.  Organization of department.


(a) The department shall consist of the Bureau for Economic Assistance; the Bureau for Behaviorial Health, the Bureau for Child and Family Services, the Bureau of Medical Services and the West Virginia Children’s Health Insurance Program. 

(b) Consistent with the provisions of §5F-2-1 of this code, the secretary may organize the department into such other offices, divisions, agencies and other administrative units as he or she sees as necessary.


§9-3-304. Acceptance of federal-state assistance and federal assistance.


The state and the department assent to the purposes of federal-state assistance and federal assistance, accepts federal appropriations and other forms of assistance made under or pursuant thereto, and authorizes the receipt of such appropriations into the state Treasury and the receipt of other forms of assistance by the department for expenditure, disbursement, and distribution by the department in accordance with the provisions of this chapter and the conditions imposed by applicable federal laws, rules and regulations.


§9-3-305.  Powers and duties of secretary.


Within limits of state appropriations and federal grants and subject to provisions of state and federal laws and regulations, the secretary, in addition to all other powers, duties and responsibilities granted and assigned to that office in this chapter and elsewhere by law, is authorized to:

(1) Promulgate, amend, revise and rescind department rules respecting the organization and government of the department and the execution and administration of those powers, duties and responsibilities granted and assigned by this chapter and elsewhere by law to the department and the secretary.

(2) Promulgate, amend, revise and rescind department rules and regulations respecting qualifications for receiving the different classes of public assistance consistent with, or permitted by, federal laws, rules and policies, but not inconsistent with state law.

(3) For the protection of applicants and recipients of public and medical assistance, child and family assistance and behavioral health services, the department shall be required to establish legislative rules governing the custody, use and preservation of the records, papers, files and communications of the department.

(4) Obtain by purchase or lease grounds, buildings, office or other space, equipment, facilities and services as may be necessary for the execution and administration of those powers, duties and responsibilities granted and assigned by this chapter and elsewhere by law to the department and the secretary.

(5) Sign and execute in the name of the state by the Department of Human Services any contract or agreement with the federal government or its agencies, other states, political subdivisions of this state, corporations, associations, partnerships or individuals: Provided, That the provisions of §5A-3-1 et seq. of this code are followed.

(6) Sign and execute a contract to implement professional health care, managed care, actuarial and health care-related monitoring, quality review/utilization, claims processing and independent professional consultant contracts for the Medicaid program: Provided, That the provisions of §5A-3-1 et seq. of this code are followed: Provided, however, That a contract awarded under the agency purchasing process from April 1, 2009, to January 2, 2013, remains in full force and effect and the secretary retains sole authority to review, approve and issue changes to contracts issued under the former purchasing process, and is responsible for challenges, disputes, protests and legal actions related to such contracts.

(7) Establish such special funds as may be required by the federal Social Security Act, as amended, or by any other Act or Acts of Congress, in order for this state to take full advantage of the benefits and provisions thereof relating to the federal-state assistance and federal assistance programs administered by the department and to make payments into and disbursements out of any such special fund or funds in accordance with the requirements of the federal Social Security Act, as amended, or any other Act or Acts of Congress, and in accordance with applicable state law and the objects and purposes of this chapter. In addition, the Department of Human Services, through the secretary, is hereby authorized to accept any and all gifts or grants, whether in money, land, services or materials, which gift or gifts, if in the form of moneys, shall be placed in a separate fund and expended solely for the purpose of public assistance programs. No part of this special fund shall revert to the General Revenue Funds of this state. No expenses incurred pursuant to this special fund shall be a charged against the General Funds of this state.

(8) Provide at department expense a program of continuing professional, technical and specialized instruction for the personnel of the department.

(9) Pay from available funds all or part of the reasonable expenses incurred by a person newly employed by the department in moving his household furniture, effects and immediate family from his or her place of residence in this state to his or her place of employment in this state; and to pay from available funds all or part of the reasonable expenses incurred by a department employee in moving his or her household furniture, effects and immediate family as a result of a reassignment of the employee which is considered desirable, advantageous to and in the best interests of the state, but no part of the moving expenses of any one such employee shall be paid more frequently than once in twelve months or for any movement other than from one place of employment in this state to another place of employment in this state.

(10) Establish a program to provide reimbursement to employees of the department whose items of personal property, as defined by the department by policy, are damaged during the course of employment or other work-related activity as a result of aggressive behavior by a client or patient receiving services from the department: Provided, That such reimbursement is limited to a maximum amount of $250.00 per claim.

(11) Prepare and submit state plans which will meet the requirements of federal laws, rules governing federal-state assistance and federal assistance and which are not inconsistent with state law.

(12) Provide by rules review and appeal procedures within the department as may be required by applicable federal laws and rules respecting state assistance, federal-state assistance and federal assistance and as will provide applicants for, and recipients of all, classes of assistance an opportunity to be heard by the Board of Review as set forth in this chapter, or a member thereof or individuals designated by the board, upon claims involving denial, reduction, closure, delay or other action or inaction pertaining to public assistance.

(13) Provide by rules, consistent with requirements of applicable federal laws and rules, application forms and application procedures for the various classes of public assistance.

(14) Provide locations for making applications for the various classes of public assistance: Provided, That the secretary may accomplish this through the use of memorandums of understanding with other entities of state government which provide services locations throughout the state.

(15) Provide a citizen or group of citizens an opportunity to file objections and to be heard upon objections to the grant of any class of public assistance.

(16) Delegate to the personnel of the department all powers and duties vested in the secretary, except the power and authority to sign contracts and agreements.

(17) Provide a citizen or group of citizens an opportunity to file objections and to be heard upon objections to the grant of any class of medical assistance.

(18) (A) Develop caseload standards based on the actual duties of employees in each program area of the department and may take into consideration existing professional caseload standards.  Standards shall be reasonable and achievable.

(B) The caseload standards which are developed establishing minimum and maximum caseloads shall be advisory for the department in the hiring of staff and in individual caseload assignments, and may be used as a basis of the departments personal services budget request to the governor and the Legislature.

(C) As used in this subsection "caseload standards" means a measurable numerical minimum and maximum workload which an employee can reasonably be expected to perform in a normal workday or workweek, based on the number, variety and complexity of cases handled or number of different job functions performed and, “professional caseload standards" means standards established by national standard setting authorities, when they exist, or caseload standards used in other states which have similar job titles.

(19) Have authority over early intervention services for children with developmental disabilities as set forth in §16-5K-1 et seq. of this code.

(20) Have authority over the James “Tiger” Morton catastrophic illness fund as set out in §16-5Q-1 et seq. of this code;

(21) (A) Serve, by certified mail or personal service, an administrative subpoena on any person, corporation, partnership, financial institution, labor organization or state agency for an appearance or for production of documents necessary for administration of the public assistance programs of the department.  In the case of disobedience to the subpoena, the secretary may invoke the aid of any circuit court in requiring the appearance or production of records and documents.

(B) Apply to the circuit court of any county in which any hearing is to be held, or the circuit court in which the subpoena or subpoena duces tecum is to be served, or the judge of either such court in vacation, for the issuance of a subpoena or subpoena duces tecum to compel the attendance of witnesses or the production of documents, before any hearing or administrative tribunal convened to consider suspension or termination of any person or corporation from providing services under the public assistance programs administered by the department. 

(22) Make such reports in such form and containing such information as may be required by applicable federal laws and rules respecting federal-state assistance and federal assistance.

(23) Invoke any legal, equitable or special remedies for the enforcement of the provisions of this article.


§9-3-306.  Attorney General and prosecuting attorneys to render legal services to secretary and commissioner.


The Attorney General, the Attorney General’s assistants, and the prosecuting attorneys of the various counties shall render to the secretary and the commissioners as set forth in this article, without additional compensation, the legal services as the secretary and the commissioners shall require of them in the discharge of their duties.  this section does not prohibit the department from developing plans for cooperation with courts, prosecuting attorneys, and other law-enforcement officials in a manner as to permit the state and its citizens to obtain maximum fiscal benefits under federal laws, rules and regulations.


PART FOUR.  BUREAU FOR CHILD AND FAMILY SERVICES.

§9-3-401. Creation of the Bureau for Child and Family Services.


Effective the first day of July 2019, The Bureau for Child and Family Services is created and continued within the Department of Human Services.

§9-3-402. Appointment of commissioner; qualifications; compensation.


(a) There is hereby created the position of commissioner. The commissioner shall:

(1) Be appointed by the Governor with advice and consent of the Senate;

(2) Report directly to the secretary;

(3) Serve at the will and pleasure of the Governor;

(4) Serve on a full-time basis and shall not engage in any other profession or occupation, including the holding of a political office in the state either by election or appointment, while serving as commissioner; and

(5) Have an appropriate educational level and have reasonable administrative experience, possess management skills and have knowledge of insurance, specifically publicly provided insurance.

(b) Before entering upon the discharge of the duties as commissioner, the commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia.

(c) The commissioner shall receive:

(1) A reasonable and competitive compensation package to be established by the secretary; and

(2) Reimbursement for expenses under the standard state travel regulations.

§9-3-403. Powers and duties of the commissioner.


(a) In addition to the powers and duties set forth in any other provision of this code, the commissioner has the following powers and duties:

(1) To develop and maintain a state plan which:

(A) Sets forth needs of the state in providing child and family services to person who qualify;

(B) Sets forth goals and objectives for meeting those needs; and

(C) Contains plans of operation for achieving the stated goals and objectives, including organizational structure; and statement of requirements in personnel funds and authority for achieving the goals and objectives.

(2) To appoint deputies and assistants to supervise the bureau’s programs and such other assistants and employees as may be necessary for the efficient operation of the bureau and all its programs.

(3) To delegate to any of his or her appointees, assistants or employees all powers and duties vested in the commissioner, including the power to execute contracts and agreements in the name of the bureau as provided in this article.  The commissioner shall be responsible for the acts of such appointees, assistants and employees.

(4) To make periodic reports to the secretary, Governor and to the Legislature as required by this chapter.

(b) The commissioner is authorized and empowered to accept and use for the benefit of the state programs any gift or devise of any property or thing which lawfully may be given.  Any gift or devise of any property or thing which lawfully may be given and whatever profit may arise from its use or investment shall be deposited in a special revenue fund with the State Treasurer, and shall be used only as specified by the donor or donors.


§9-3-404. Organization and employees.

(a) The commissioner shall organize the work of the bureau in such offices or other organizational units as he or she may determine to be necessary for effective and efficient operation.

(b) The commissioner shall employ a sufficient number of employees so as to provide for the effective and efficient operation of the bureau.

(c) The secretary may transfer employees and resources of the department to the bureau as may be necessary to fulfill the duties and responsibilities of the bureau pursuant to this chapter.  The secretary may not transfer employees of other divisions and agencies within the department to the bureau without a prior finding that the office or position held by the employee may be eliminated and until the office or position is, in fact, eliminated.

(d) The commissioner, if he or she deems such action necessary, may hire legal counsel for the bureau, notwithstanding the provisions of §5-3-1 of this code or any other code provision to the contrary, or may request the Attorney General to appoint counsel who shall perform such duties as may be required by the bureau. The Attorney General, in pursuance of such request, may select and appoint counsel to serve during the will and pleasure of the Attorney General, and shall be paid out of any funds allocated and appropriated to the bureau.

(e) The commissioner may employ such staff or employees as may be necessary to administer and enforce this chapter. 


§9-3-405. Supervisory responsibilities of the commissioner.

The commissioner shall have control and supervision of the bureau and shall be responsible for the work of each of its organizational units. Each organizational unit shall be headed by an employee of the bureau appointed by the commissioner who shall be responsible to the commissioner for the work of his or her organizational unit.


§9-3-406. General duties and powers of the Bureau for Child and Family Services.

(a) In carrying out the policies and procedures for enforcing the provisions of this chapter, the bureau shall have the following power and authority:

(1) To establish policies and procedures for governing the administration of the bureau and providing child and family services to the citizens of this state as set forth in this code;

(2) To formulate standard fiscal procedures and make recommendations for improvement of the Bureau;

 (3) To provide for a procedure for supplies and equipment for the bureau;

 (4) To act as a liaison with other state entities and private groups with an interest in services to children and families;

 (5) To offer child and family services to those who meet the eligibility standards set by the bureau and the federal government through laws, rules and regulations; and

(6) To perform any other duties assigned to the bureau by the secretary.

(b) To operate and oversee all child welfare programs as set forth in chapter forty-nine of this code, including but not limited to child care center licensing, early childhood education, child protective series and any other child welfare service.

(c) To operate and oversee a program of social services for adults as set forth in this chapter. 


§9-3-407.  Continuation of present aid; contributions by counties.


(a) Except as otherwise provided in this chapter, aid or assistance rendered under existing law shall not be deemed to be discontinued.

(b) County commissions may contribute in-kind services or money into a special fund of the department to expand the general assistance programs for citizens of its county.  No part of this fund shall revert to the general revenue of the state.


§9-3-408. Application for and granting of federal-state or federal assistance.

Any person domiciled in this state, who shall make, or have made in his or her behalf, an application therefor and who is otherwise in all respects qualified to receive the same, shall be granted federal-state assistance or federal assistance in such form and amount, to such extent, and for such period, as authorized by applicable federal and state laws, rules and regulations and as determined by the bureau in accordance with such laws, rules and regulations and within limits of available funds.


§9-3-409. Application for and granting of state assistance.

Any indigent person domiciled in this state, who shall make, or have made in his or her behalf, an application therefor and who is otherwise in all respects qualified to receive the same, shall be granted state assistance in such form and amount, to such extent, and for such period, as authorized by applicable state laws, rules and regulations of the bureau and as determined by the bureau in accordance with such laws, rules and regulations and within limits of available funds.


§9-3-410. Making application, investigation and grant.

(a) All persons wishing to make application for child and family services and assistance shall have an opportunity to do so. Upon receipt of an application for child and family services and assistance, the bureau shall make such investigation as may be necessary and as the exigency of the case will permit to determine the eligibility of the applicant for, and the form, amount, extent, and period of, such assistance.

(b) When the bureau approves an application for child and family services and assistance, it shall fix the amount, form, extent and period of such assistance in accordance with applicable federal and state laws, rules and regulations and within the limits of available funds.


§9-3-411. Penalties for false statements, etc.

Any person who obtains, or attempts to obtain, or aids or abets an applicant or recipient in obtaining, or attempting to obtain, by means of a willfully false statement or misrepresentation or by impersonation of any other fraudulent device:

(1) Any assistance to which the applicant or recipient is not entitled; or

(2) Any assistance in excess of that to which the applicant or recipient is justly entitled; shall upon conviction be punished as follows:

(A) If the aggregate value of all funds or other benefits obtained or attempted to be obtained shall be $500 or less, the person so convicted shall be guilty of a misdemeanor and, shall be fined not more than $1,000 or confined in jail not exceeding one year; or

(B) If the aggregate value of all funds or other benefits obtained or attempted to be obtained shall exceed $500, the person so convicted shall be guilty of a felony and, shall be fined not more than $5,000 or confined in the penitentiary not less than one year nor more than five years.

§9-3-412. Assignment of support obligations.


(a) Any recipient of financial assistance under the program of state and federal assistance established by Title IV of the federal Social Security Act of 1965, as amended, or any successor act thereto, shall, as a condition of receiving assistance funded pursuant to this article  assign to the Department of Human Services any right the family member may have, on behalf of the family member or of any other person for whom the family member has applied for, or is receiving such assistance, to support from any other person, not exceeding the total amount of assistance so paid to the family, which accrues during the period that the family receives assistance pursuant to the program.

(b) Each applicant for assistance subject to the assignment established in this section shall, during the application process, be informed in writing of the nature of the assignment.

(c) Any payment of federal and state assistance made to, or for the benefit of, any child or children or the caretaker of a child or children creates a debt due and owing to the Department of Human Services by the person or persons responsible for the support and maintenance of the child, children or caretaker in an amount equal to the amount of assistance money paid: Provided, That the debt is limited by the amount established in any court order or final decree of divorce if the amount in the order or decree is less than the amount of assistance paid.

(d) The assignment pursuant to this section shall subrogate the Department of Human Services to the rights of the child, children or caretaker to the prosecution or maintenance of any action or procedure existing under law providing a remedy whereby the Department of Human Services may be reimbursed for moneys expended on behalf of the child, children or caretaker. The Department of Human Services shall further be subrogated to the debt created by any order or decree awarding support and maintenance to, or for the benefit of, any child, children or caretaker included within the assignment pursuant to this section and shall be empowered to receive money judgments and endorse any check, draft, note or other negotiable document in payment thereof.

(e) The assignment created pursuant to this section shall be released upon closure of the assistance case and the termination of assistance payments except for support and maintenance obligations accrued and owing at the time of closure which are necessary to reimburse the department for any balance of assistance payments made.

(f) The Department of Human Services may, at the election of the recipient, continue to receive support and maintenance moneys on behalf of the recipient following closure of the assistance case and shall distribute the moneys to the caretaker, child or children.


§9-3-413.  Authority to examine witnesses, administer oaths and take affidavits.


The secretary, the commissioner and employees of the department may administer oaths, examine witnesses and take and certify affidavits in any matter or thing pertaining to the business of the department.



The secretary and the commissioner and every duly appointed hearing examiner may apply, on behalf of any party, to the circuit court of the county in which a hearing is to be held, or the circuit court in which the subpoena or subpoena duces tecum is to be served, or the judge of either such court in vacation, for the issuance of a subpoena or subpoena duces tecum to compel the attendance of witnesses or the production of documents, before any hearing or administrative tribunal convened to consider suspension or termination of any person or corporation from providing services under the public assistance programs administered by the department.  The application for a subpoena duces tecum shall state with particularity any papers or documents requested and upon hearing, the applicant or party shall notify the court or judge, as the case may be, of the necessity therefor in such hearing.  The court or judge thereof, prior to issuing the requested subpoena or subpoena duces tecum, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.  The party who applies for the subpoena or subpoena duces tecum shall pay the sheriff's fees required for service of these documents.


PART FIVE. OFFICE OF MATERNAL, CHILD AND FAMILY HEALTH.

§9-3-501. Creation of office.


(a) There is established and continued within the Department of Human Services, Bureau for Child and Families, the Office of Maternal, Child and Family Health.

(b) The office shall develop a plan for a comprehensive system and uniform approach to any screening conducted by physicians and midwives to discover at-risk and high-risk pregnancies and to offer better health outcomes for women and their families.

(c) The office shall provide for prenatal examination as set forth in this article and for a birth score program and newborn testing as set forth in this article and shall also include programs federally funded pursuant to Title V of Maternal and Child Health Block Grant Program.


§9-3-502. Compulsory serologic test.

Every pregnant woman who is resident in West Virginia, shall have a blood sample taken and submitted to the West Virginia State Hygienic Laboratory or other laboratory approved by the department.  The laboratory shall perform a standard serologic test for syphilis. Any standard laboratory test for syphilis approved by the secretary shall be considered to be such a standard serologic test.


§9-3-503. Attending physician to obtain blood specimen.

Every physician providing services to a pregnant woman in West Virginia shall, as soon as he or she is engaged to attend a woman and has reasonable grounds for suspecting that pregnancy exists, acquaint such woman with the provisions of this article and take or cause to be taken a specimen of blood from such woman. This specimen shall be submitted to the state hygienic laboratory or other laboratory approved by the department as required by this article. If the woman is in a stage of gestation or labor at the time that the diagnosis of pregnancy is made, which may make it inadvisable to obtain the specimen, the specimen of blood shall be obtained within ten days following delivery.

The state hygienic laboratory shall perform the serological tests required by law on all blood specimens taken from pregnant women by physicians for examination. These tests shall be performed without charge.

Upon request it shall be the duty of local health officers to draw blood specimens from pregnant women for performing thereon a serologic test for syphilis. This service shall be performed without charge.

In those areas where the services of a district or county health officer are not available, the department shall assume the responsibility of obtaining the required blood specimens without any charge to the pregnant women.


§9-3-504. Identification of specimen; report.

Any physician who takes or causes to be taken from a woman in pregnancy or suspected pregnancy a blood test for syphilis shall identify such specimen as being from a pregnant woman, and the laboratory shall provide a report in triplicate on forms prepared and furnished by the department showing the results of such tests.

The original of each such report shall be sent at once to the physician submitting the specimen, a duplicate shall be forwarded to the department during the week that the test was performed, and the triplicate shall be retained by the laboratory for its files.

All laboratory reports shall be confidential and shall not be open to public inspection.

The laboratory test for syphilis in compliance with this article shall be performed free of charge by the state hygienic laboratory on the application of any municipal or county health officer or other physician, or any other person permitted by law to secure such specimens.


§9-3-505. Notation on birth certificate.

Every physician required to report births and stillbirths, shall state on each birth certificate or stillbirth certificate, as the case may be, whether a blood test for syphilis was performed during such pregnancy upon a specimen of blood taken from the woman who bore the child for which the birth or stillbirth certificate is filed.

If such test was made, the physician shall state on the certificate the name of the test used, the date the test was performed and the name of the laboratory making the test; if not made, the physician filing the certificate shall state the reason or reasons why such test was not performed. In no event shall the result of the test be stated on the birth or stillbirth certificate.


§9-3-506. Penalties.

Any physician or representative of a laboratory, making such examinations or tests as are required above, or filing such birth or stillbirth certificates, who shall knowingly misrepresent any of the facts called for in the laboratory reports or birth or stillbirth certificate, or who otherwise knowingly and wilfully shall violate any provision above, shall be guilty of a misdemeanor and, upon conviction thereof shall be subject to a fine of not less than $10 nor more than $50.

§9-3-507. Birth score program established.


(a) The department shall establish and implement a birth score program designed to combat postneonatal mortality and to detect debilitating conditions and possible developmental delays in newborn infants in the state.

(b) The purpose and goals of the birth score program are to reduce the incidence of postneonatal mortality and disease by:

(1) Identifying newborns at greatest risk for death between one month and one year of age; and

(2) Linking these infants with physicians for close follow-up during the first year of life.

(c) The birth score of a newborn infant shall be determined pursuant to the program established by the department by trained hospital or birthing facility personnel immediately after the infant is delivered.


§9-3-508. Determination of birth score; referral to physician.

Any hospital or birthing facility in which an infant is born, any physician attending the infant, or any other person attending the infant if not under the care of a physician, shall require and ensure that a birth score is determined for the newborn infant in order to assess the level of risk for postneonatal mortality, debilitating conditions and developmental delays.

No birth score shall be determined or birth score program implemented if the parent or guardian objects to the birth score program on the grounds that it conflicts with their religious tenets and practices.

Any infant delivered at a nonlicensed facility, including, but not limited to, home births, shall have a birth score determined by the child's primary physician within ten days of birth, subject to the exception set forth in this section.

When any infant receives a high risk birth score, as determined by the program established by this article, the parents shall be informed of the birth score and its implications, and then linked with a local primary care physician for a recommended six visits in the first six months of the infant's life.

The department, in cooperation with other state departments and agencies, may provide necessary medical and other referrals for services related to infants determined to be at high risk for postneonatal mortality and other debilitating conditions and developmental delays.


§9-3-509. Newborn testing program established.

The department is authorized to establish and carry out a program designed to conduct tests on newborns in this state to combat intellectual disability or other severe health hazards in our state's population due to phenylketonuria, galactosemia, hypothyroidism, and certain other diseases specified by the secretary and in §9-3-510 of this code.

The department shall establish and maintain facilities at its state hygienic laboratory for testing specimens for the detection of phenylketonuria, galactosemia, hypothyroidism, and certain other diseases specified by the secretary.

Tests shall be made by such laboratory of specimens upon request by physicians, hospital medical personnel and other individuals attending newborn infants. The secretary is authorized to establish additional laboratories throughout the state to perform tests for the detection of phenylketonuria, galactosemia, hypothyroidism, and certain other diseases specified by the secretary.


§9-3-510. Tests for diseases specified by the secretary; reports; assistance to afflicted children; penalties.

The hospital or birthing center in which an infant is born, the parents or legal guardians, the physician attending a newborn child, or any person attending a newborn child not under the care of a physician shall require and ensure that each such child be tested for phenylketonuria, galactosemia, hypothyroidism, sickle cell anemia and certain other diseases specified by the secretary. The department shall also require testing for congenital adrenal hyperplasia, cystic fibrosis and biotinidase deficiency.

The department shall also require testing for isovaleric acidemia, glutaric acidemia type I, 3-Hydroxy-3-methylglutaric aciduria, multiple carboxylase deficiency, methylmalonic acidemia-mutase deficiency form, 3-methylcrotonyl-CoA carboxylase deficiency, methylmalonic acidemia, Cbl A and Cbl B forms, propionic acidemia, beta-ketothiolase deficiency, medium-chain acyl-CoA dehydrogenase deficiency, very long-chain acyl-CoA dehydrogenase deficiency, long-chain hydroxyacyl-CoA dehydrogenase deficiency, trifunctional protein deficiency, carnitine uptake defeat, maple syrup urine disease, homocystinuria, citrullinemia type I, argininosuccinate acidemia, tyrosinemia type I, hemoglobin S/Beta-thalassemia, sickle C disease and hearing deficiency.

Any person violating the provisions of this section and §9-3-509 of this code is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $25 nor more than $50.

Violation of each such provision is considered a separate offense.

§9-3-511. Pulse oximetry newborn testing.


(a) The department shall also require each birthing facility which they license to perform a pulse oximetry screening on every newborn in its care, when the baby is twenty-four to forty-eight hours of age, or as late as possible if the baby is to be discharged from the hospital before he or she is twenty-four hours of age.

(b) As used in this section, "birthing facility" means an inpatient or ambulatory health care facility licensed by the department that provides birthing and newborn care services.

§9-3-512. Reporting requirements.


A positive result on any test specified in this article, or a positive result for any other diseases specified by the department shall be promptly reported to the department by the director of the laboratory performing such test.

§9-3-513. Testing required on newborns for hearing loss.


The physician or midwife in attendance at, or present immediately after, a live birth shall perform, or cause to be performed, a test for hearing loss in the infant unless the infant's parents refuse to have the testing performed pursuant to the provisions of §9-3-514(d) of this code.

For any infant delivered at a nonlicensed facility, including home births, the physician or other health care provider shall inform the parents of the need to obtain testing within the first month of life.

The secretary shall prescribe the test or tests to be administered in accordance with this article.


§9-3-514. Payment for testing and screening.

(a) All testing and screening required pursuant to this article shall be a covered benefit reimbursable by all health insurers except for health insurers that offer only supplemental coverage policies or policies which cover only specified diseases. All policies issued pursuant to §33-15-1 et seq., §33-16-1 et seq., §33-24-1 et seq., and §33-25A15-1 et seq. of this code shall provide coverage for the testing required pursuant to this article.

(b) Newborn screenings pursuant to §9-3-510 of this code shall be considered a covered benefit reimbursed to the birthing facilities by Public Employees Insurance Agency, the state Children's Health Insurance Program and the Medicaid program.

(c) The department shall pay for testing required pursuant to this article when the newborn infant is eligible for medical assistance pursuant to the provisions of §9-3-916 of this code.

(d) In the absence of a third-party payor, the parents of a newborn infant shall be informed of the testing availability and its costs and they may refuse to have the testing performed.

(e) Charges for the hearing tests required pursuant to this article shall be paid by the hospital or other health care facility where the infant's birth occurred.

(f) Nothing contained in this section may be construed to preclude the hospital or other health care facility from billing the infant's parents directly.


§9-3-515. Hearing impairment testing advisory committee established.

There is hereby established a West Virginia Hearing Impairment Testing Advisory Committee which shall advise the secretary regarding the protocol, validity, monitoring and cost of hearing tests procedures required pursuant to this article.

This committee is to meet four times per year for the initial two years and on the call of the secretary thereafter. The secretary, or his or her designee, shall serve as the chair and shall appoint twelve members, one representing each of the following groups:

(1) A representative of the health insurance industry;

(2) An otolaryngologist or otologist;

(3) An audiologist with experience in evaluating infants;

(4) A neonatologist;

(5) A pediatrician;

(6) A hospital administrator;

(7) A speech or language pathologist;

(8) A teacher or administrative representative from the West Virginia School of the Deaf;

(9) A parent of a hearing-impaired child;

(10) A representative from the Office of Early Intervention Services within the department;

(11) A representative from the State Department of Education; and

(12) A representative from the West Virginia Commission for the Deaf and Hard-of-Hearing.

(c) Members of this advisory committee shall serve without compensation.

(d) A majority of members constitutes a quorum for the transaction of all business.

(e) Members shall serve for two-year terms and may not serve for more than two consecutive term.


§9-3-516. Establishment of an advisory council on maternal risk assessment.

(a) There is created within the Department of Health Services, Office of Maternal, Child and Family Health an advisory council on maternal risk assessment to provide assistance in the development of a uniform maternal risk screening tool.

(b) The Office of Maternal, Child and Family Health is charged with convening the advisory council at least annually and providing administrative and technical assistance to the advisory council as needed. The members of the advisory council shall be appointed by the Commissioner of the Bureau for Childern and Family Services.

(c) The advisory council shall be comprised of:

(1) At least one private provider of maternity services;

(2) At least one public provider of maternity services;

(3) One representative from each of the state's three medical schools;

(4) The Commissioner of the Bureau for Child and Family Services, or his or her designee;

(5) The Director of the Office of Maternal, Child and Family Health, or his or her designee;

(6) At least one representative of a tertiary care center;

(7) At least one representative of a facility with a level I or II obstetrical unit;

(8) At least one certified nurse midwife; and

(9) At least one allopathic or osteopathic physician who is a private provider of maternity services at a facility with a level I or level II obstetrical unit.


§9-3-517. Responsibilities of the advisory council on maternal risk assessment.

This advisory council shall:

(1) Advise the Office of Maternal, Child and Family Health with respect to the operation of the program;

(2) Offer expert advice to the Office of Maternal, Child and Family Health on the development of a uniform risk screening tool and review the tool at least annually to offer suggested updates based upon current medical knowledge;

(3) Provide comments to the Office of Maternal, Child and Family Health on any legislative rules necessary for the accomplishment of any requirements of this article; and

(4) Develop in conjunction with the Office of Maternal, Child and Family Health a statistical matrix to measure incidents of high-risk and at-risk pregnancies for planning purposes by public health officials.


§9-3-518. Applicability of the screening tool.

Once developed, all health care providers offering maternity services shall be required to utilize the uniform maternal risk screening tool in their examinations of any pregnant woman. Additionally they shall notify the woman of any high-risk condition which they identify along with any necessary referral and report the results to the Office of Maternal, Child and Family Health in the manner provided in legislative rule.


§9-3-519. Confidentiality of screening tool.

(a) The uniform maternal screening tool shall be confidential and shall not be released or disclosed to anyone including any state or federal agency for any reason other than data analysis of high-risk and at-risk pregnancies for planning purposes by public health officials.

(b) Proceedings, records and opinions of the advisory council are confidential and are not subject to discovery, subpoena or introduction into evidence in any civil or criminal proceeding. Nothing in this subsection is to be construed to 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 advisory council.

(c) Members of the advisory council may not be questioned in any civil or criminal proceeding regarding information presented in or opinions formed as a result of a meeting of the panel. Nothing in this subsection may be construed to prevent a member of the advisory council from testifying to information obtained independently of the panel or which is public information.


§9-3-520. Rulemaking.

The secretary shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code as may be needed to establish the programs, ensure compliance and assess penalties as needed to implement the provisions of this article.

These rules may include, at a minimum;

(1) Establishment of a reasonable fee schedule for tests administered pursuant to this article, which shall be used to cover program costs not otherwise covered by federal grant funds specifically secured for this purpose;

(2) Establishment of a cost-effective testing protocol based upon available technology and national standards;

(3) Establishment of reporting and referral requirements; 

(4) Establishment of a date for implementation of the testing protocol;

(5) A means for the department, in cooperation with other state agencies, and with attending physicians, to provide medical, dietary and related assistance to children determined to be afflicted with any disease specified in this article and certain other diseases specified by the department;

(6) A means for payment for the testing provided for in this article;

(7) A uniform maternal risk screening tool to identify women at risk for a preterm birth or other high-risk condition; and

(8) Anything further considered necessary by the secretary to implement the provisions of this article.


PART SIX. SOCIAL SERVICES FOR ADULTS.


§9-3-601. Adult protective services: organization and duties.

(a) There is hereby established and continued within the Department of Human Services a system of adult protective services.

(b) The department shall develop a plan for a comprehensive system of adult protective services including social case work, medical and psychiatric services, home care, day care, counseling, research and others to achieve the goals of this article.

(c) The plan 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 adult and, to such incapacitated adults or to adults who may request and be entitled to such protective services.

(d) 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.


§9-3-602. Immunity from civil liability.

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.


§9-3-603. 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 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 of any incapacitated adult or facility resident in this state.


§9-3-604. Action to abate abuse, neglect or emergency.

(a) The department or any reputable person may bring and maintain an action against any person having actual care, custody or control of an incapacitated adult, for injunctive relief, including a preliminary injunction, to restrain and abate any abuse or neglect of an incapacitated 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 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.

(b) The court may by order terminate assistance granted or paid to any person found to have abused or neglected an incapacitated adult and order any such assistance to be paid to another person solely for the use and benefit of such abused or neglected person, and grant such other equitable relief as may be appropriate in the circumstances to restrain and abate such abuse or neglect.

(c) That in the case of an action to abate an emergency situation, the court may grant the relief authorized in §9-3-605 of this code.


§9-3-605. Emergency immediate remedial treatment; procedure.

(a) Whenever a circuit court shall find in an action to abate an emergency situation that:

(1) There is probable cause to believe that an incapacitated adult is in an emergency situation; and

(2) That the person or persons having the immediate care, custody and control of such incapacitated adult refuses to take necessary steps to alleviate such emergency;

(3) Or that such incapacitated adult is without the actual care, custody and control of any persons;

 It may issue an order of attachment for such incapacitated adult and direct that the peace officer executing the same deliver such incapacitated adult in his or her 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.

(b) 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 or her, may enter into the place of abode to remove such incapacitated person, notwithstanding the residence therein of other persons.

(c) If any employee or officer of the department shall by direct observation of an incapacitated adult not in the immediate care, custody or control of another have reasonable cause to believe that such incapacitated 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 adult for immediate remedial treatment to reduce or avoid the risk of death, or serious injury.

(d) Immediately upon delivery of any incapacitated 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 adult. The court shall fix a time, not later than one judicial day later, to determine if such remedial treatment shall continue or such incapacitated 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 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. The commitment for further remedial treatment may be continued until proceedings for such appropriate relief be concluded. Application for release from such remedial treatment may be made and granted at any time that the emergency ceases.


§9-3-606. Payment and termination of payment for services to incapacitated adult.

If any incapacitated adult:

(1) Requires and is granted remedial treatment for an emergency or the department determines that an incapacitated adult is;

(2) Abused; or

(3) Neglected;

The department may pay any assistance granted for the use and benefit of such incapacitated adult to the person actually providing care for such adult, and terminate payments to any person alleged or shown to have abused or neglected such incapacitated 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 is abated, and such incapacitated adult continues to be in the immediate care, custody and control of such person.


§9-3-607. Reporting procedures.

(a) A report of neglect or abuse of an incapacitated adult or facility resident or of an emergency situation involving such an adult shall be made immediately by telephone to the department's local adult protective services agency and shall be followed by a written report by the complainant or the receiving agency within forty-eight 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 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 or emergency situation shall be immediately filed with the following agencies:

(1) The Department of Human Services;

(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 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) Reports of known or suspected institutional abuse or neglect of an incapacitated 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 this article and applicable state or federal laws, rules or regulations.


§9-3-608. 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, law-enforcement officer, humane officer, state or regional ombudsman or any employee of any nursing home or other residential facility has reasonable cause to believe that an incapacitated adult or facility resident is or has been neglected, abused or placed in an emergency situation, or if such person observes an incapacitated adult or facility resident being subjected to conditions that are likely to result in abuse, neglect or an emergency situation, the person shall immediately report the circumstances pursuant to the provisions of §9-3-610 of this code. 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 of an incapacitated 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 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) The department shall develop and implement a procedure to notify any person mandated to report suspected abuse and neglect of an incapacitated adult or facility resident of whether an investigation into the reported suspected abuse or neglect has been initiated and when the investigation is completed.


§9-3-609. Mandatory reporting suspected of animal cruelty by adult protective service workers.

In the event an adult protective service worker, in response to a report mandated by this article, forms a reasonable suspicion that an animal is the victim of cruel or inhumane treatment, he or she shall report the suspicion and the basis therefor to the county humane officer provided under §7-10-1 of this code within twenty-four hours of the response to the report.


§9-3-610. Mandatory reporting to medical examiner or coroner; postmortem investigation.

(a) Any person or official who is required pursuant to this article to report cases of suspected abuse or neglect and who has probable cause to believe that an incapacitated 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.


§9-3-611. 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 §9-3-610 of this code.

(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 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 exploitation of vulnerable adults, 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 exploitation of a vulnerable adult.

(3) The prosecuting attorney of the judicial circuit in which the vulnerable adult resides or in which the alleged abuse, neglect or 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.

(7) The victim.

(8) The victim's legal representative, unless he or she is the subject of an investigation pursuant tou 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 exploitation of adults may be made available to:

(1) Any person who the department has determined to have abused, neglected or exploited the victim.

(2) Any appropriate official of the state or regional long-term care ombudsman investigating a report of known or suspected abuse, neglect or exploitation of a vulnerable adult.

(3) 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) Employees or agents of an agency of another state that has jurisdiction to investigate known or suspected abuse, neglect or exploitation of vulnerable adults.

(5) A professional person when the information is necessary for the diagnosis and treatment of, and service delivery to, a vulnerable adult.

(6) A department administrative hearing officer when the hearing officer determines the information is necessary for the determination of an issue before the officer.

(e) The identity of any person reporting abuse, neglect or exploitation of a vulnerable adult may not be released, without that person's written consent, to any person other than employees of the department responsible for protective services or the appropriate prosecuting attorney or law-enforcement agency. This subsection grants protection only for the person who reported the abuse, neglect or exploitation and protects only the fact that the person is the reporter. This subsection does not prohibit the subpoena of a person reporting the abuse, neglect or exploitation when deemed necessary by the prosecuting attorney or the department to protect a vulnerable adult who is the subject of a report, if the fact that the person made the report is not disclosed.


§9-3-612. Abrogation of privileged communications.

The privileged status of communications between husband and wife, and with any person required to make reports pursuant to this article, except communications between an attorney and his or her client, is hereby abrogated in circumstances involving suspected or known abuse or neglect of an incapacitated adult or where the incapacitated adult is in a known or suspected emergency situation.


§9-3-613. 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, family member, legal representative or employee for the reason that he or she filed a complaint or participated in any matter or proceeding stemming from the provisions of this article.

(c) Violation of the prohibition contained in subsection (b) of this section by a nursing home or other residential facility constitutes grounds for the suspension or revocation of the license of the facility, if it operates under license pursuant to this code, or other appropriate measure.


§9-3-614. Compelling production of information.

(a) In order to obtain information regarding the location of an adult who is the subject of an allegation of abuse or neglect, the secretary of the department 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.

(b) In case of disobedience to the subpoena, in compelling the production of information the secretary may invoke the aid of:

(1) The circuit court with jurisdiction over the served party, if the entity served is located in this state; or

(2) 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.

(c) A circuit court shall not enforce an administrative subpoena unless it finds that:

(1) The investigation is one the division of adult protective services is authorized to make and is being conducted pursuant to a legitimate purpose;

(2) The inquiry is relevant to that purpose;

(3) The inquiry is not too broad or indefinite;

(4) The information sought is not already in the possession of the division of adult protective services; and

(5) Any administrative steps required by law have been followed.

(d) 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, 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.


§9-3-615. Failure to report; penalty.

Any person subject to the mandatory reporting provisions of this article who knowingly fails to make any report required herein or any person who knowingly prevents another person from making such a report is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $100 or imprisoned in the county jail for not more than ten days, or both fined and imprisoned.


§9-3-616. Rulemaking.

(a) 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.

(b) 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 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 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;

(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 adults and facility residents through the joint efforts of the various agencies of the Department of Human Services, 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 and neglect of residents in nursing homes or facilities; and

(8) Coordinating investigation activities for complaints of abuse and neglect of incapacitated adults and facility residents among the various agencies of the Department of Human Services, 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.

(c) 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.

PART SEVEN.  BUREAU FOR ECOMONIC ASSISTANCE.

§9-3-701. Creation of the Bureau for Economic Assistance.


Effective the first day of July, 2019, The Bureau for Economic Assistance is created and continued within the Department of Human Services. 

§9-3-702. Appointment of commissioner; qualifications; oath; compensation.


(a) There is hereby created the position of commissioner. The commissioner shall:

(1) Be appointed by the Governor with advice and consent of the Senate;

(2) Report directly to the secretary;

(3) Serve at the will and pleasure of the Governor;

(4) Serve on a full-time basis and shall not engage in any other profession or occupation, including the holding of a political office in the state either by election or appointment, while serving as commissioner; and

(5) Have an appropriate educational level and reasonable administrative experience, possess management skills and have knowledge of programs designed to provide public assistance to eligible persons.

 (b) Before entering upon the discharge of the duties as commissioner, the commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia.

(c) The commissioner shall receive:

(1) A reasonable and competitive compensation package to be established by the secretary; and

(2) Reimbursement for expenses under the standard state travel regulations.

§9-3-703. Powers and duties of the commissioner.


(a) In addition to the powers and duties set forth in any other provision of this code, the commissioner has the following powers and duties:

(1) To develop and maintain a state plan which:

(A) Sets forth needs of the state in providing public assistance to person who qualify;

(B) Sets forth goals and objectives for meeting those needs; and

(C) Contains plans of operation for achieving the stated goals and objectives, including organizational structure; and statement of requirements in personnel funds and authority for achieving the goals and objectives.

(2) To appoint deputies and assistants to supervise the bureau’s programs and such other assistants and employees as may be necessary for the efficient operation of the bureau and all its programs.

(3) To delegate to any of his or her appointees, assistants or employees all powers and duties vested in the commissioner, including the power to execute contracts and agreements in the name of the bureau as provided in this article.  The commissioner shall be responsible for the acts of such appointees, assistants and employees.

(4) To make periodic reports to the secretary, Governor and to the Legislature as required by this chapter.

(b) The commissioner is authorized and empowered to accept and use for the benefit of the state programs any gift or devise of any property or thing which lawfully may be given.  Any gift or devise of any property or thing which lawfully may be given and whatever profit may arise from its use or investment shall be deposited in a special revenue fund with the State Treasurer, and shall be used only as specified by the donor or donors.


§9-3-704. Organization and employees.

(a) The commissioner shall organize the work of the bureau in such offices or other organizational units as he or she may determine to be necessary for effective and efficient operation.

(b) The commissioner shall employ a sufficient number of employees so as to provide for the effective and efficient operation of the bureau.

(c) The secretary may transfer employees and resources of the department to the bureau as may be necessary to fulfill the duties and responsibilities of the bureau pursuant to this chapter.  The secretary may not transfer employees of other divisions and agencies within the department to the bureau without a prior finding that the office or position held by the employee may be eliminated and until the office or position is, in fact, eliminated.

(d) The commissioner, if he or she deems such action necessary, may hire legal counsel for the bureau, notwithstanding the provisions of §5-3-2 of this code or any other code provision to the contrary, or may request the Attorney General to appoint counsel who shall perform such duties as may be required by the bureau. The Attorney General, in pursuance of such request, may select and appoint counsel to serve during the will and pleasure of the Attorney General, and shall be paid out of any funds allocated and appropriated to the bureau.

(e) The commissioner may employ such staff or employees as may be necessary to administer and enforce this chapter. 


§9-3-705. Supervisory responsibilities of the commissioner.

The commissioner shall have control and supervision of the bureau and shall be responsible for the work of each of its organizational units. Each organizational unit shall be headed by an employee of the bureau appointed by the commissioner who shall be responsible to the commissioner for the work of his or her organizational unit.


§9-3-706. General duties and powers of the Bureau for Economic Assistance.

(a) In carrying out the policies and procedures for enforcing the provisions of this chapter, the bureau shall have the following power and authority:

(1) To establish policies and procedures for governing the administration of the bureau and providing public assistance to the citizens of this state as set forth in this code;

(2) To formulate standard fiscal procedures and make recommendations for improvement of the bureau;

 (3) To provide for a procedure for supplies and equipment for the bureau;

 (4) To act as a liaison with other state entities and private groups with an interest in economic assistance to children and families;

 (5) To offer economic assistance services to those who meet the eligibility standards set by the bureau and the federal government through laws, rules and regulations; and

(6) To perform any other duties assigned to the bureau by the secretary.

(b) To operate and oversee the West Virginia Works Program as set forth in the chapter.

(c) To operate and oversee the Supplement Nutrition Assistance Program codified at 7 U.S.C. 51. 

(d) To operate and oversee any other economic assistance programs.


§9-3-707.  Continuation of present aid; contributions by counties.


(a) Except as otherwise provided in this chapter, aid or assistance rendered under existing law shall not be deemed to be discontinued.

(b) County commissions may contribute in-kind services or money into a special fund of the department to expand the general assistance programs for citizens of its county.  No part of this fund shall revert to the general revenue of the state.


§9-3-708. Application for and granting of federal-state or federal assistance.

Any person domiciled in this state, who shall make, or have made in his or her behalf, an application therefor and who is otherwise in all respects qualified to receive the same, shall be granted federal-state assistance or federal assistance in such form and amount, to such extent, and for such period, as authorized by applicable federal and state laws, rules and regulations and as determined by the bureau in accordance with such laws, rules and regulations and within limits of available funds.


§9-3-709. Application for and granting of state assistance.

Any indigent person domiciled in this state, who shall make, or have made in his or her behalf, an application therefor and who is otherwise in all respects qualified to receive the same, shall be granted state assistance in such form and amount, to such extent, and for such period, as authorized by applicable state laws, rules and regulations of the bureau and as determined by the bureau in accordance with such laws, rules and regulations and within limits of available funds.


§9-3-710. Making application, investigation and grant.

(a) All persons wishing to make application for economic assistance services shall have an opportunity to do so. Upon receipt of an application for economic assistance services, the bureau shall make such investigation as may be necessary and as the exigency of the case will permit to determine the eligibility of the applicant for, and the form, amount, extent, and period of, such assistance.

(b) When the bureau approves an application for economic assistance services, it shall fix the amount, form, extent and period of such assistance in accordance with applicable federal and state laws, rules and regulations and within the limits of available funds.


§9-3-711. Penalties for false statements, etc.

 Any person who obtains or attempts to obtain, or aids or abets an applicant or recipient in obtaining or attempting to obtain, by means of a willfully false statement or misrepresentation or by impersonation of any other fraudulent device:

(1) Any assistance to which the applicant or recipient is not entitled; or

(2) Any assistance in excess of that to which the applicant or recipient is justly entitled; shall upon conviction be punished as follows:

(A) If the aggregate value of all funds or other benefits obtained or attempted to be obtained shall be $500 or less, the person so convicted shall be guilty of a misdemeanor and, shall be fined not more than $1,000 or confined in jail not exceeding one year; or

(B) If the aggregate value of all funds or other benefits obtained or attempted to be obtained shall exceed $500, the person so convicted shall be guilty of a felony and, shall be fined not more than $5,000 or confined in the penitentiary not less than one year nor more than five years.


§9-3-712. Special Supplementary Food Program for Women, Infants and Children (WIC).

Effective January 1, 2019, the WIC program shall be organized within the Bureau for Economic Assistance.  All employees, functions, agreements, contracts or any other matter relating to the WIC program shall transfer to the bureau at that time.

(b) Vouchers or coupons or drafts authorized by the bureau in the administration of the special supplementary food program for women, infants and children, commonly known as the WIC program, under the auspices and guidelines of the United States Department of Agriculture, such vouchers or coupons or drafts, when received by a vendor from a holder thereof in exchange for food, food stuffs, or authorized goods or services, may be deposited by the vendor in any federally insured bank in this state for collection and payment thereof, and such bank shall accept the same as equivalent to a negotiable instrument from a holder in due course pursuant to chapter forty-six of this code, and shall collect the funds for such vouchers or coupons so received.

(c) All moneys received from the United States Department of Agriculture under the WIC program, except for moneys to be used for administration, shall be deposited by the commissioner of the Bureau of Economic Assistance in a special account in a federally insured bank in this state, and notwithstanding other provisions of this code to the contrary, this special account may be funded by the commissioner of the Bureau for Economic Assistance as a special advance payment imprest funds account to be reconciled at least annually by the state Treasurer from which said bank can daily make required wire transfers to pay each day's presentments of vouchers or coupons or drafts. The commissioner of the Bureau for Economic Assistance shall select the bank by competitive bidding in the same manner as the state Treasurer selects depository banks for state funds, subject to applicable federal laws or regulations governing such selection.

(d) The provisions of this section enacted in the year one thousand nine hundred eighty-nine shall take effect on April 1, one thousand nine hundred ninety, except that the commissioner shall commence procedures for the selection of the bank and for implementation of the other provisions of this section upon the passage hereof.

(e) Nothing in this section shall make such vouchers or coupons or drafts negotiable instruments for any purpose other than expressly set forth herein or as permitted by applicable federal laws or regulations.


§9-3-713. Assignment of support obligations.

(a) Any recipient of financial assistance under the program of state and federal assistance established by Title IV of the federal Social Security Act of 1965, as amended, or any successor act thereto, shall, as a condition of receiving assistance funded pursuant to this article  assign to the Department of Human Services any right the family member may have, on behalf of the family member or of any other person for whom the family member has applied for or is receiving such assistance, to support from any other person, not exceeding the total amount of assistance so paid to the family, which accrues during the period that the family receives assistance under the program.

(b) Each applicant for assistance subject to the assignment established in this section shall, during the application process, be informed in writing of the nature of the assignment.

(c) Any payment of federal and state assistance made to, or for the benefit of, any child or children or the caretaker of a child or children creates a debt due and owing to the Department of Human Services by the person or persons responsible for the support and maintenance of the child, children or caretaker in an amount equal to the amount of assistance  paid: Provided, That the debt is limited by the amount established in any court order or final decree of divorce if the amount in the order or decree is less than the amount of assistance paid.

(d) The assignment pursuant to this section shall subrogate the Department of Human Services to the rights of the child, children or caretaker to the prosecution or maintenance of any action or procedure existing under law providing a remedy whereby the Department of Human Services may be reimbursed for moneys expended on behalf of the child, children or caretaker. The Department of Human Services shall further be subrogated to the debt created by any order or decree awarding support and maintenance to, or for the benefit of, any child, children or caretaker included within the assignment under this section and shall be empowered to receive money judgments and endorse any check, draft, note or other negotiable document in payment thereof.

(e) The assignment created pursuant to this section shall be released upon closure of the assistance case and the termination of assistance payments except for support and maintenance obligations accrued and owing at the time of closure which are necessary to reimburse the department for any balance of assistance payments made.

(f) The Department of Human Services may, at the election of the recipient, continue to receive support and maintenance moneys on behalf of the recipient following closure of the assistance case and shall distribute the moneys to the caretaker, child or children.


§9-3-714.  Authority to examine witnesses, administer oaths and take affidavits.


The secretary, the commissioner and employees of the department may administer oaths, examine witnesses and take and certify affidavits in any matter or thing pertaining to the business of the department.


§9-3-715.  Authority to subpoena witnesses and documents when investigating the provision of assistance programs.


The secretary and the commissioner and every duly appointed hearing examiner may apply, on behalf of any party, to the circuit court of the county in which a hearing is to be held, or the circuit court in which the subpoena or subpoena duces tecum is to be served, or the judge of either such court in vacation, for the issuance of a subpoena or subpoena duces tecum to compel the attendance of witnesses or the production of documents, before any hearing or administrative tribunal convened to consider suspension or termination of any person or corporation from providing services under the public assistance programs administered by the department.  The application for a subpoena duces tecum shall state with particularity any papers or documents requested and upon hearing, the applicant or party shall notify the court or judge, as the case may be, of the necessity therefor in such hearing.  The court or judge thereof, prior to issuing the requested subpoena or subpoena duces tecum, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.  The party who applies for the subpoena or subpoena duces tecum shall pay the sheriff's fees required for service of these documents.


PART EIGHT. WEST VIRGINIA WORKS ACT.


§9-3-801. Legislative findings; purpose.

(a) The Legislature hereby finds and declares that:

(1) The entitlement of any person to receive federal-state cash assistance is hereby discontinued;

(2) At-risk families are capable of becoming self-supporting;

(3) An assistance program should both expect and assist a parent and caretaker-relatives in at-risk families to support their dependent children and children for which they are caretakers;

(4) Every parent or caretaker-relative can exhibit responsible patterns of behavior so as to be a positive role model;

(5) Every parent or caretaker-relative who receives cash assistance has a responsibility to participate in an activity to help them prepare for, obtain and maintain gainful employment;

(6) For a parent or caretaker-relative who receives cash assistance and for whom full-time work is not feasible, participation in some activity is required to further himself or herself, his or her family or his or her community;

(7) The state should promote the value of work and the capabilities of individuals;

(8) Job development efforts should enhance the employment opportunities of participants;

(9) Education is the key to achieving and maintaining life-long self-sufficiency; and

(10) An assistance program should be structured to achieve a clear set of outcomes; deliver services in an expedient, effective and efficient manner; and maximize community support for participants.

(b) The goals of the program are to achieve more efficient and effective use of public assistance funds; reduce dependency on public programs by promoting self-sufficiency; and structure the assistance programs to emphasize employment and personal responsibility. The success of the program is to be evaluated on the following activities, including, but not limited to: Job entry, job retention, federal work participation requirements and completion of educational activities.


§9-3-802. Authorization for program.

(a) The secretary shall conduct the West Virginia Works Program in accordance with this article and any applicable regulations promulgated by the secretary of the federal Department of Health and Human Services in accordance with federal block-grant funding or similar federal funding stream. This program shall expend only the funds appropriated by the Legislature to establish and operate the program or any other funds available to the program; establish administrative due process procedures for reduction or termination proceedings; and implement any other procedures necessary to accomplish the purpose of this article.

(b) The West Virginia Works Program authorized pursuant to this article does not create an entitlement to that program or any services offered within that program, unless entitlement is created pursuant to a federal law or regulation. The West Virginia Works Program and each component of that program established by this article or the expansion of any component established pursuant to federal law or regulation is subject to the annual appropriation of funds by the Legislature.

§9-3-803. West Virginia Works Program fund.


There is continued a special account within the state Treasury to be known as the "West Virginia Works Program Fund". Expenditures from the fund shall be used exclusively to meet the necessary expenditures of the program, including wage reimbursements to participating employers, temporary assistance for needy families, payments for support services, employment-related child care payments, transportation expenses and administrative costs directly associated with the operation of the program. Moneys paid into the account shall be from specific annual appropriations of funds by the Legislature.


§9-3-804. Program participation.

(a) Unless otherwise noted in this article, all adult beneficiaries of cash assistance and work eligible individuals shall participate in the West Virginia Works Program in accordance with the provisions of this article. The level of participation, services to be delivered and work requirements shall be defined through legislative rules established by the secretary.

(b) Any individual exempt under the provisions of this article may participate in the activities and programs offered through the West Virginia Works Program.

(c) Support services other than cash assistance through the West Virginia Works Program may be provided to at-risk families to assist in meeting the work requirements or to eliminate the need for cash assistance.

(d) Cash assistance through the West Virginia Works Program may be provided to an at-risk family if the combined family income, as defined in this article, is below the income test levels established by the department, subject to the following:

(1) Any adult member of an at-risk family who receives supplemental security income shall be excluded from the benefit group;

(2) Within the limits of funds appropriated therefor, an at-risk family that includes a married man and woman and dependent children of either one or both may receive an additional cash assistance benefit in an amount of $100 or less; and

(3) An at-risk family shall receive an additional cash assistance benefit in the amount of $25 regardless of the amount of child support collected in a month on behalf of a child or children of the at-risk family, as allowed by federal law.


§9-3-805. Work requirements.

(a) Unless otherwise exempted by the provisions of this article, the West Virginia Works Program shall require that anyone who possesses a high school diploma, or its equivalent, or anyone who is of the age of twenty years or more, to work or attend an educational or training program for at least the minimum number of hours per week required by federal law under the work participation rate requirements for all families in order to receive any form of cash assistance. Participation in any education or training activity, as defined in this article, shall be counted toward satisfaction of the work requirement imposed by this section to the extent permissible under federal law and regulation and the participant demonstrates adequate progress toward completion of the program. In accordance with federal law or regulation, the work, education and training requirements of this section are waived for any qualifying participant with a child under six years of age if the participant is unable to obtain appropriate and available child care services.

(b) The department and representatives of the Higher Education Policy Commission and the West Virginia Council for Community and Technical College Education shall develop and implement a plan to use and expand the programs available at the state's community and technical colleges, colleges and universities to assist beneficiaries or participants who are enrolled, or wish to become enrolled, in vocational-educational training not to exceed twelve months with respect to any individual to meet the work requirements of this section. Vocational-educational training shall be supervised daily and on an ongoing basis.


§9-3-806. Exemptions.

The secretary shall establish by rule categories of persons exempt, but the exemption applies only to the work requirements of the program. A person who is exempt from the work requirements may participate voluntarily in work activities. The categories of exemptions are limited to the following:

(1) Undocumented aliens and aliens under the five-year ban;

(2) Parents, or at state option on a case-by-case basis, anyone receiving supplemental security income;

(3) A parent who is providing medically necessary care for a disabled family member who resides in the home and is not a full-time student;

(4) Minor parents who are not head of household (spouses of the head of household); and

(5) Grandparents and other nonparental caretakers.


§9-3-807. Personal responsibility contract.

(a)(1) Every eligible adult beneficiary and work eligible individual shall participate in a program orientation, family assessments and in the development, and subsequent revisions, of a personal responsibility contract. The contract shall be defined based on the program time limits, support services available, work requirements and family assessments.

(2) The participant's contract shall include the following requirements:

(A) That the participant develop and maintain, with the appropriate health care provider, a schedule of preventive care for his or her dependent child or children, including routine examinations and immunizations;

(B) Assurance of school attendance for school-age children under his or her care;

(C) Assurance of properly supervised child care, including after-school care;

(D) Establishment of paternity or active pursuit of child support, or both, if applicable and if considered necessary; and

(E) Nutrition or other counseling, parenting or family-planning classes.

(3) If the participant is a teenage parent, he or she may work, but the contract shall include the requirements that the participant:

(A) Remain in an educational activity to complete high school, obtain a general equivalency diploma or obtain vocational training and make satisfactory scholastic progress;

(B) Attend parenting classes or participate in a mentorship program, or both, if appropriate; and

(C) Live at home with his or her parent or guardian or in some other adult-supervised arrangements if he or she is an unemancipated minor.

(4) If the participant is under the age of twenty years and does not have a high school diploma or its equivalent, the contract shall include requirements to participate in mandatory education or training which, if the participant is unemployed, may include a return to high school, with satisfactory scholastic progress required.

(b) In order to receive cash assistance, the participant shall enter into a personal responsibility contract. If the participant refuses to sign the personal responsibility contract, the participant and family members are ineligible to receive cash assistance. A participant who alleges that the terms of a personal responsibility contract are inappropriate based on his or her individual circumstances may request, and shall be provided, a fair and impartial hearing in accordance with administrative procedures established by the Department of Health and Compliance as set forth in §9-2-1 et seq. of this code and due process of law. A participant who signs a personal responsibility contract or complies with a personal responsibility contract does not waive his or her right to request and receive a hearing pursuant to this subsection.

(c) Personal responsibility contracts shall be drafted by the department on a case-by-case basis; take into consideration the individual circumstances of each beneficiary; reviewed and reevaluated periodically, but not less than on an annual basis; and, in the discretion of the department, amended on a periodic basis.


§9-3-808. Participation limitation; exceptions.

The length of time a participant may receive cash assistance through the West Virginia Works Program may not exceed a period longer than sixty months, except in circumstances as defined by the secretary.


§9-3-809. Breach of contract; notice; sanctions.

(a) The department may terminate cash assistance benefits to an at-risk family if it finds any of the following:

(1) Fraud or deception by the beneficiary in applying for or receiving program benefits;

(2) A substantial breach by the beneficiary of the requirements and obligations set forth in the personal responsibility contract and any amendments or addenda to the contract; or

(3) A violation by the beneficiary of any provision of the personal responsibility contract or any amendments or addenda to the contract, this article, or any rule or policy promulgated by the secretary pursuant to this article.

(b) In the event the department determines that benefits received by the beneficiary are subject to reduction or termination, written notice of the reduction or termination and the reason for the reduction or termination shall be deposited in the United States mail, postage prepaid and addressed to the beneficiary at his or her last-known address at least thirteen days prior to the termination or reduction. The notice shall state the action being taken by the department and grant to the beneficiary a reasonable opportunity to be heard at a fair and impartial hearing before the Department of Health and Compliance as set forth in §9-2-1 et seq. of this code and in accordance with administrative procedures established by that department and due process of law.

(c) In any hearing conducted pursuant to the provisions of this section, the beneficiary has the burden of proving that his or her benefits were improperly reduced or terminated and shall bear his or her own costs, including attorneys' fees.

(d) The secretary shall promulgate emergency rules and legislative rules, pursuant to §29A-3-1 et seq. of this code, setting forth the schedule of sanctions to be imposed when a beneficiary has violated any provision of this article, of his or her personal responsibility contract or any amendment or addendum to the contract, or any applicable department rule. In developing these rules, the secretary is directed to make those sanctions graduated and sufficiently stringent, when compared to those of contiguous states, so as to discourage persons from moving from such states to this state to take advantage of lesser sanctions being imposed for the same or similar violations by the secretary. The secretary shall also promulgate legislative rules setting forth what constitutes de minimis violations and those violations subject to sanctions and maximum penalties.

§9-3-810. Diversionary assistance allowance in lieu of monthly cash assistance.


(a) In order to encourage at-risk families not to apply for ongoing monthly cash assistance from the state, the secretary may issue one-time diversionary assistance allowances to families in an amount not to exceed the equivalent of three months of cash assistance in order to enable the families to become immediately self-supporting.

(b) The secretary shall establish by rule the standards to be considered in making diversionary assistance allowances.

(c) Nothing in this section may be construed to require that the department or any assistance issued pursuant to this section be subject to any of the provisions of chapter thirty-one or chapter forty-six-a of this code.


§9-3-811. Subsidized employment.

(a) To the extent that resources are available, an employer may be paid a subsidy by the department to employ a parent or caretaker-relative of an at-risk family if the employer agrees to hire the West Virginia Works Program participant at the end of the subsidized period. If the employer does not hire the participant at the end of the subsidized period, the program may not use that employer for subsidized employment for the next twelve months.

(b) If the department determines that an employer has demonstrated a pattern of discharging employees hired pursuant to the provisions of this section subsequent to the expiration of the subsidized period without good cause, the employer shall no longer be eligible for participation in the subsidized employment program for a period to be determined by the department.


§9-3-812. Transitional assistance.

The West Virginia Works Program may provide transitional assistance in the form of supportive services.


§9-3-813. Interagency coordination.

(a) The Legislature encourages the development of a system of coordinated services, shared information and streamlined application procedures between the program and the other agencies within various departments of state government to implement the provisions of this article. The secretary shall coordinate activities between the program and the following agencies:

(1) The Bureau for Child Support Enforcement for the purpose of establishing paternity, promoting cooperation in the pursuit of child support, encouraging noncustodial parents to get job search assistance and determining eligibility for cash assistance and support services;

(2) The Bureau for Public Health for the purpose of determining appropriate immunization schedules, delivery systems and verification procedures; and

(3) The Bureau for Medical Services for the purpose of reporting eligibility for medical assistance and transitional benefits.

(b) The secretary may require the coordination of procedures and services with any other agency he or she considers necessary to implement this program. All agencies coordinating services with the department shall, when provided with access to department records or information, abide by state and federal confidentiality requirements including the provisions of this article.

(c) The secretary shall propose any rules, including emergency rules, necessary for the coordination of various agency activities in the implementation of this section.


§9-3-814. Intergovernmental coordination.

(a) The commissioner of the Bureau of Employment Programs and the superintendent of the Department of Education shall assist the secretary in the establishment of the West Virginia Works Program. Before implementation of this program, each department shall address in its respective plan the method in which its resources will be devoted to facilitate the identification of or delivery of services for participants and shall coordinate its respective programs with the department in the provision of services to participants and their families. Each county board of education shall designate a person to coordinate with the local Department of Human Services office the board's services to participant families and that person shall work to achieve coordination at the local level.

(b) The secretary and the superintendent shall develop a plan for program implementation to occur with the use of existing state facilities and county transportation systems within the project areas whenever practicable. This agreement shall include, but not be limited to, the use of buildings, grounds and buses. Whenever possible, the supportive services, education and training programs should be offered at the existing school facilities.

(c) The commissioner shall give priority to participants of the West Virginia Works Program within the various programs of the Bureau of Employment Programs. The secretary and the commissioner shall develop reporting and monitoring mechanisms between their respective agencies.


§9-3-815. Public-private partnerships.

The secretary may enter into agreements with any private, nonprofit, charitable or religious organizations to promote the development of the community support services necessary for the effective implementation of this program, including cooperative arrangements with private employers of former program participants for the purpose of obtaining and maintaining employer-based family health insurance coverage for former participants and their spouses and dependent children through direct payments to the employers out of funds appropriated for the cooperative agreements.


§9-3-816. Relationship with other law.

(a) If any provision of this article conflicts with any other provision of this code or rules, the provisions of this article shall supersede such provisions.  The provisions of this article shall not supersede any provisions which are required or mandated by federal law.

(b) Any reference in this code or rules to "aid to families with dependent children" means "temporary assistance for needy families" or any successor state program funded under Part A, Title IV of the Social Security Act.


§9-3-817. Confidentiality, fines and penalties.

(a) Except as otherwise provided in this code or rules, all records and information of the department regarding any beneficiary or beneficiary's family members, including the Supplemental Nutrition Assistance Program, child support and Medicaid records, are confidential and shall not be released, except under the following circumstances:

(1) If permissible under state or federal rules or regulations;

(2) Upon the express written consent of the beneficiary or his or her legally authorized representative;

(3) Pursuant to an order of any court of record of this state or the United States based upon a finding that the information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by this section. All confidential records and information presented to the court shall, after review be sealed by the clerk and shall, not be open to any person except upon order of the court upon good cause being shown for the confidential records and information to be opened; or

(4) To a department or division of the state or other entity, pursuant to the terms of an interagency or other agreement which specifically references this section and extends its requirements for confidentiality to the other entity receiving the records or information, its agents and employees.

(b) Any person who knowingly and willfully releases or causes to be released the confidential records and information described in this section, except under the specific circumstances enumerated in this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $500 or confined in the county or regional jail for not more than six months, or both.


§9-3-818. West Virginia Works Separate State College Program; eligibility; special revenue account.

(a) There is established the West Virginia Works Separate State College Program. The program shall provide funding for participants who are enrolled in post-secondary courses leading to a two or four year degree. There is created within the state Treasury a special revenue account to be known as the “West Virginia Works Separate State College Program Fund”. Expenditures from the fund shall be for the purposes set forth in this section and are not authorized from collections but are to be made only in accordance with appropriations by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions of §11B-2-1 et seq. of this code. Necessary expenditures include wage reimbursements to participating employers, temporary assistance for needy families, payments for support services, employment-related child care payments, transportation expenses and administrative costs directly associated with the operation of the program.

(b) All eligible adults attending post-secondary courses leading to a two or four year degree and who are not participating in vocational education training, as that term is defined in this article, shall be enrolled in the West Virginia Works Separate State College Program. Participants in the program shall not be required to engage in more than ten hours per week of federally defined work activities. The work, education and training requirements of this article are waived for any qualifying participant with a child under six years of age if the participant is unable to obtain appropriate and available child care services. All other requirements of West Virginia Works apply to program administration for adults enrolled in the program.

(c) The Department of Human Services shall work with the Higher Education Policy Commission, as set forth in §18B-1B-1 et seq. of this code, and the Council for Community and Technical College Education, as set forth in §18B-2B-1 et seq. of this code, to develop and implement a plan to use and expend funds for the programs available at the state's community and technical colleges and colleges and universities to assist participants who are enrolled, or wish to become enrolled, in two and four year degree programs of post-secondary education to meet the work requirements of this article.


§9-3-819. West Virginia Works Separate State Two-Parent Families Program.

(a) There is established the West Virginia Works Separate State Two-Parent Families Program. The program shall provide funding for participants who are a two-parent family as that term is defined in this article. There is created within the state Treasury a special revenue account to be known as the “West Virginia Works Separate State Two-Parent Program Fund”. Expenditures from the fund shall be for the purposes set forth in this section and are not authorized from collections but are to be made only in accordance with appropriations by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions of §11B-2-1 et seq. of this code. Necessary expenditures include wage reimbursements to participating employers, temporary assistance for third party needy families, payments for support services, employment-related child care payments, transportation expenses and administrative costs directly associated with the operation of the program.

(b) All eligible two parent families, as that term is defined in this article, shall enroll in the West Virginia Works Separate State Two-Parent Families Program. All requirements of West Virginia Works shall apply to program administration for two-parent families enrolled in the program.


§9-3-820.  State's participation in federal work incentive program.


(a) West Virginia acknowledges that the Congress of the United States has enacted legislation amending the Social Security Act to permit states to establish work incentive programs.  The secretary may transfer moneys from any appropriate public assistance grant account under his or her control to the special fund, administered by the United States Secretary of Labor.  Any moneys transferred by the secretary to the special fund shall be considered as money expended for grants.  The secretary may promulgate rules, establish plans and perform any other acts necessary to implement this state's participation in the aforesaid work incentive program.

(b) The secretary shall cooperate and coordinate his or her activities with the Commissioner of the Bureau of Employment Programs.


§9-3-821.  Effective date of transfer.

Effective July 1, 2019, the West Virginia Works Program shall transfer and become under the administrative functions of the Department of Human Services.

PART NINE. DRUG SCREENING.

§9-3-901.  Pilot program for drug screening of applicants for cash assistance.


(a) As used in this section:

“Applicant” means a person who is applying for benefits from the Temporary Assistance for Needy Families Program.

“Board of Review” means the board established in §9-4-1 et seq. of this code.

“Caseworker” means a person employed by the department with responsibility for making a reasonable suspicion determination during the application process for Temporary Assistance for Needy Families.

“Child Protective Services” means the agency within the department responsible for investigating reports of child abuse and neglect as required in §49-2-802 of this code.

“Department” means the Department of Human Services.

“Drug screen” or “drug screening” means any analysis regarding substance abuse conducted by the Department of Human Services on applicants for assistance from the Temporary Assistance for Needy Families program.

“Drug test” or “drug testing” means a drug test which tests urine for Amphetamines (amphetamine and methamphetamine) Cocaine, Marijuana, Opiates (codeine and morphine), Phencyclidine, Barbiturates, Benzodiazepines, Methadone, Propoxyphene and Expanded Opiates (oxycodone, hydromorphone, hydrocodone, oxymorphone).

“Secretary” means the Secretary of the Department of Human Services, or his or her designee.

“Temporary Assistance for Needy Families Program” means assistance provided through ongoing cash benefits pursuant to 42 U. S. C. §601, et seq., operated in West Virginia as the West Virginia Works Program pursuant to this article.

(b) Subject to federal approval, the secretary shall implement and administer a three year pilot program to drug screen any adult applying for assistance from the Temporary Assistance for Needy Families Program. The secretary shall seek the necessary federal approval immediately following the enactment of this section and the program shall begin within sixty days of receiving federal approval.

(c) Reasonable suspicion exists if:

(1) A case worker determines, based upon the result of the drug screen, that the applicant demonstrates qualities indicative of substance abuse based upon the indicators of the drug screen; or

(2) An applicant has been convicted of a drug-related offense within the three years immediately prior to an application for Temporary Assistance for Needy Families Program and whose conviction becomes known as a result of a drug screen as set forth in this section.

(d) Presentation of a valid prescription for a detected substance that is prescribed by a health care provider authorized to prescribe a controlled substance is an absolute defense for failure of any drug test administered under the provisions of this section.

(e) Upon a determination by the case worker of reasonable suspicion as set forth in this section an applicant shall be required to complete a drug test. The cost of administering the drug test and initial substance abuse testing program is the responsibility of the Department of Human Services. Any applicant whose drug test results are positive may request that the drug test specimen be sent to an alternative drug-testing facility for additional drug testing. Any applicant who requests an additional drug test at an alternative drug-testing facility shall be required to pay the cost of the alternative drug test.

(f) Any applicant who has a positive drug test shall complete a substance abuse treatment and counseling program and a job skills program approved by the secretary. An applicant may continue to receive benefits from the Temporary Assistance for Needy Families program while participating in the substance abuse treatment and counseling program or job skills program.  Upon completion of both a substance abuse treatment and counseling program and a job skills program, the applicant is subject to periodic drug screening and testing as determined by the secretary in rule. Subject to applicable federal laws, any applicant for Temporary Assistance for Needy Families program who fails to complete, or refuses to participate in, the substance abuse treatment and counseling program or job skills program as required under this subsection is ineligible to receive Temporary Assistance for Needy Families until he or she is successfully enrolled in substance abuse treatment and counseling and job skills programs. Upon a second positive drug test, an applicant shall be ordered to complete a second substance abuse treatment and counseling program and job skills program. He or she shall be suspended from the Temporary Assistance for Needy Families program for a period of twelve months, or until he or she completes both a substance abuse treatment and counseling program and a job skills program.  Upon a third positive drug test an applicant shall be permanently terminated from the Temporary Assistance for Needy Families Program subject to applicable federal law.

(g) Any applicant who refuses a drug screen or a drug test is ineligible for assistance.

(h) The secretary shall order an investigation and home visit from Child Protective Services on any applicant whose benefits are suspended and who has not designated a protective payee or whose benefits are terminated due to failure to pass a drug test. This investigation and home visit may include a face-to-face interview with the child, if appropriate; the development of a protection plan; and, if necessary for the health and well-being of the child, may also involve law enforcement. This investigation and home visit shall be followed by a report detailing recommended action which Child Protective Services shall undertake. Child Protective Services is responsible for providing, directing or coordinating the appropriate and timely delivery of services to any child who is the subject of any investigation and home visit conducted pursuant to this section. In cases where Child Protective Services determines that the best interests of the child requires court action, they shall initiate the appropriate legal proceeding.

(i) Any other adult members of a household that includes a person declared ineligible for the Temporary Assistance for Needy Families program pursuant to this section shall, if otherwise eligible, continue to receive Temporary Assistance for Needy Families benefits.

(j)(1) No dependent child’s eligibility for benefits under the Temporary Assistance for Needy Families program may be affected by a parent’s failure to pass a drug test.

(2) If pursuant to this section a parent is deemed ineligible for the Temporary Assistance for Needy Families program, the dependent child’s eligibility is not affected and an appropriate protective payee shall be designated to receive benefits on behalf of the child.

(3) The parent may choose to designate another person as a protective payee to receive benefits for the minor child. The designated person shall be an immediate family member, or if an immediate family member is not available or declines the option, another person may be designated.

(4) The secretary shall screen and approve the designated person.

(k)(1) An applicant who is determined by the secretary to be ineligible to receive benefits pursuant to subsection (f) of this section due to a failure to participate in a substance abuse treatment and counseling program or a job skills program who can later document successful completion of a drug treatment program approved by the secretary may reapply for benefits six months after the completion of the substance abuse treatment and counseling program or job skills program.  An applicant who has met the requirements of this subdivision and reapplies is also required to submit to a drug test and is subject to the provisions of subsection (f) of this section.

(2) An applicant may reapply only once pursuant to the exceptions contained in this subsection.

(3) The cost of any drug screen or test and drug treatment provided under subsection (k) is the responsibility of the individual being screened and receiving treatment.

(l) An applicant who is denied assistance under this section may request a review of the denial by the Board of Review. The results of a drug screen or test are admissible without further authentication or qualification in the review of denial by the Board of Review and in any appeal.  The Board of Review shall provide a fair, impartial and expeditious grievance and appeal process to applicants who have been denied Temporary Assistance for Needy Families pursuant to the provisions of this section. The Board of Review shall make findings regarding the denial of benefits and issue a decision which either verifies the denial or reverses the decision to deny benefits.  Any applicant adversely affected or aggrieved by a final decision or order of the Board of Review may seek judicial review of that decision.

(m) The secretary shall ensure the confidentiality of all drug screen and drug test results administered as part of this program. Drug screen and test results shall be used only for the purpose of determining eligibility for the Temporary Assistance for Needy Families program. At no time may drug screen or test results be released to any public or private person or entity or any law-enforcement agency, except as otherwise authorized by this section.

(n) The secretary shall promulgate emergency rules pursuant to the provisions of §29A-3-1 et seq. of this code to prescribe the design, operation and standards for the implementation of this section.

(o) A person who intentionally misrepresents any material fact in an application filed under the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $100 nor more than $1,000 or by confinement in jail not to exceed six months, or by both fine and confinement.

(p) The secretary shall report to the Joint Committee on Government and Finance by December 31, 2016, and annually after that until the conclusion of the pilot program on the status of the federal approval and pilot program described in this section. The report shall include, but is not limited to:

(1) The total number of applicants who were deemed ineligible to receive benefits under the program due to a positive drug test for controlled substances;

(2) The number of applicants for whom there was a reasonable suspicion due to a conviction of a drug-related offense within the five years prior to an application for assistance;

(3) The number of those applicants that receive benefits after successful completion of a drug treatment program as specified in this section; and

(4) The total cost to operate the program.

(q) Should federal approval not be given for any portion of the program as set forth in this section, the secretary shall implement the program to meet the federal objections and continue to operate a three year pilot program consistent with the purpose of this section.

(r) For the purposes of the pilot program contained in this section, pursuant to the authority and option granted by 21 U. S. C. §862a(d)(1)(A) to the states, West Virginia hereby exempts all persons domiciled within the state from the application of 21 U. S. C. §862a(a).


PART TEN.  BUREAU FOR MEDICAL SERVICES.

§9-3-1001. Creation of the Bureau for Medical Services.


Effective the first day of July, 2019, The Bureau for Medical Services is created and continued within the Department of Human Services. 

§9-3-1002. Appointment of commissioner; qualifications; compensation.


(a) There is created the position of commissioner. The commissioner shall:

(1) Be appointed by the Governor with advice and consent of the Senate;

(2) Report directly to the secretary;

(3) Serve at the will and pleasure of the Governor;

(4) Serve on a full-time basis and shall not engage in any other profession or occupation, including the holding of a political office in the state either by election or appointment, while serving as commissioner; and

(5) Have an appropriate educational level and administrative experience, possess management skills and have knowledge of insurance, specifically publicly provided insurance.

 (b) Before entering upon the discharge of the duties as commissioner, the commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia.

(c) The commissioner shall receive:

(1) A reasonable and competitive compensation package to be established by the secretary; and

(2) Reimbursement for expenses under the standard state travel regulations.

§9-3-1003. Powers and duties of the commissioner.


(a) In addition to the powers and duties set forth in any other provision of this code, the commissioner shall have the following powers and duties:

(1) To develop and maintain a state plan which:

(A) Sets forth needs of the state in providing medical assistance to person who qualify;

(B) Sets forth goals and objectives for meeting those needs; and

(C) Contains plans of operation for achieving the stated goals and objectives, including organizational structure; and statement of requirements in personnel funds and authority for achieving the goals and objectives.

(2) To appoint deputies and assistants to supervise the bureau’s programs and such other assistants and employees as may be necessary for the efficient operation of the bureau and all its programs.

(3) To delegate to any of his or her appointees, assistants or employees all powers and duties vested in the commissioner, including the power to execute contracts and agreements in the name of the bureau as provided in this article.  The commissioner shall be responsible for the acts of such appointees, assistants and employees.

(4) To make periodic reports to the secretary, Governor and to the Legislature as required by this chapter.

(b) The commissioner is authorized and empowered to accept and use for the benefit of the Medicaid program any gift or devise of any property or thing which lawfully may be given.  Any gift or devise of any property or thing which lawfully may be given and whatever profit may arise from its use or investment shall be deposited in a special revenue fund with the State Treasurer, and shall be used only as specified by the donor or donors.


§9-3-1004. Organization and employees.

(a) The commissioner shall organize the work of the bureau in such offices or other organizational units as he or she may determine to be necessary for effective and efficient operation.

(b) The commissioner shall employ a sufficient number of employees so as to provide for the effective and efficient operation of the bureau.

(c) The secretary may transfer employees and resources of the department to the bureau as may be necessary to fulfill the duties and responsibilities of the bureau pursuant to this chapter.  The secretary may not transfer employees of other divisions and agencies within the department to the bureau without a prior finding that the office or position held by the employee may be eliminated and until the office or position is, in fact, eliminated.

(d) The commissioner, if he or she deems such action necessary, may hire legal counsel for the bureau, notwithstanding the provisions of §5-3-2 of this code or any other code provision to the contrary, or may request the Attorney General to appoint counsel who shall perform such duties as may be required by the bureau. The Attorney General, in pursuance of such request, may select and appoint counsel to serve at the will and pleasure of the Attorney General, and shall be paid out of any funds allocated and appropriated to the bureau.

(e) The commissioner may employ such staff or employees as may be necessary to administer and enforce this chapter. 


§9-3-1005. Supervisory responsibilities of the commissioner.

The commissioner shall have control and supervision of the bureau and shall be responsible for the work of each of its organizational units. Each organizational unit shall be headed by an employee of the bureau appointed by the commissioner who shall be responsible to the commissioner for the work of his or her organizational unit.


§9-3-1006. General duties and powers of the Bureau for Medical Services.

In carrying out the policies and procedures for enforcing the provisions of this chapter, the bureau shall have the following power and authority:

(1) To establish policies and procedures for governing the administration of the bureau and the awarding of medical assistance;

(2) To formulate standard fiscal procedures and make recommendations for improvement of the bureau;

(3) To provide for a procedure for supplies and equipment for the bureau;

(4) To act as a liaison with other state entities and private groups with an interest in medical assistance;

(5) To offer medical assistance to persons who meet the eligibility standards set by the bureau and the federal government through laws, rules and regulations; and

(6) To perform any other duties assigned to the bureau by the secretary.


§9-3-1007. Bureau of Medical Services information.

(a) The Bureau of Medical Services shall publish all informational bulletins, health plan advisories, and guidance published by the department concerning the Medicaid program on the department's website.

(b) The bureau shall publish all Medicaid state plan amendments and any related correspondence within twenty-four hours of receipt of the correspondence submission to the Centers for Medicare and Medicaid Services.

(c) The bureau shall publish all formal responses by the Centers for Medicare and Medicaid Services regarding any state plan amendment on the department's website within twenty-four hours of receipt of the correspondence.


§9-3-1008.  Continuation of present aid; contributions by counties.


(a) Except as otherwise provided in this chapter, aid or assistance rendered under existing law shall not be deemed to be discontinued.

(b) County commissions may contribute in-kind services or money into a special fund of the department to expand the general assistance programs for citizens of its county.  No part of this fund shall revert to the general revenue of the state.


§9-3-1009.  Application for and granting of federal-state or federal assistance.


Any person domiciled in this state, who shall make, or have made in his or her behalf, an application and who is otherwise qualified to receive assistance shall be granted federal-state assistance or federal assistance in such form and amount, to such extent, and for such period, as authorized by applicable federal and state laws, rules and regulations and as determined by the department in accordance with such laws, rules and regulations and within limits of available funds.


§9-3-1010.  Investigation and grant.


(a) Upon receipt of an application for any class of assistance, the bureau shall make an investigation as may be necessary and as the exigency of the case will permit to determine the eligibility of the applicant for, and the form, amount, extent, and period of, such assistance.

(b) When the bureau approves an application for medical assistance, it shall fix the amount, form, extent and period of the assistance in accordance with applicable federal and state laws, rules and regulations and within the limits of available funds.

§9-3-1011. Penalties for false statements, etc.


 Any person who obtains or attempts to obtain, or aids or abets an applicant or recipient in obtaining or attempting to obtain, by means of a willfully false statement or misrepresentation or by impersonation of any other fraudulent device:

(1) Any class of assistance to which the applicant or recipient is not entitled; or

(2) Any class of assistance in excess of that to which the applicant or recipient is justly entitled; shall upon conviction be punished as follows:

(A) If the aggregate value of all funds or other benefits obtained or attempted to be obtained shall be $500 or less, the person so convicted shall be guilty of a misdemeanor and, shall be fined not more than $1,000 or confined in jail not exceeding one year; or

(B) If the aggregate value of all funds or other benefits obtained or attempted to be obtained shall exceed $500, the person so convicted shall be guilty of a felony and, shall be fined not more than $5,000 or confined in the penitentiary not less than one year nor more than five years.


§9-3-1012. Exemption of grants from certain taxes and claims.

Grants of all classes of assistance received under the provisions of this chapter shall be exempted from the collection of taxes except sales taxes, from levy of execution, garnishment, suggestion, and any other legal process.


§9-3-1013.  Medical services fund.


(a) The special fund known as the “Medical Services Fund” is continued.

(b) The fund shall consist of payments made into the fund out of state appropriations for medical services to recipients of specified classes of assistance and such federal grants-in-aid as are made available for specified classes of assistance.  Any balance in the fund at the end of any fiscal year shall remain in the fund and shall not expire or revert.  Payments shall be made out of the fund upon requisition of the commissioner by means of a warrant signed by the Auditor and Treasurer.

(c) Recipients of those classes of assistance as are specified by the department, consistent with applicable federal laws, rules and regulations, shall be entitled to have costs of necessary medical services paid out of the fund, in the manner and amounts, to the extent, and for the period determined from time to time to be feasible by the commissioner pursuant to legislative rules established by him or her.  The legislative rules shall comply with requirements of applicable federal laws, rules and regulations and shall be established on the basis of money available for the purpose, the number of recipients, the experience with respect to the incidence of illness, disease, accidents, and other causes among the recipients causing them to require medical services and the costs thereof, the amounts which recipients require otherwise in order to maintain a subsistence compatible with decency and health, and any other factor considered relevant and proper by the commissioner.  The legislative rules respecting qualifications shall permit the expenditure of state funds to pay for care rendered in any birthing center licensed under the provisions of §16-2E-1 et seq. of this code, by a licensed nurse midwife or midwife as this term is defined in §30-15-1 et seq. of this code.


§9-3-1014.  Limitation on use of funds.


(a) No funds from the Medicaid program accounts may be used to pay for the performance of an abortion by surgical or chemical means unless on the basis of the physician's best clinical judgment, there is:

(1) A medical emergency that so complicates a pregnancy as to necessitate an immediate abortion to avert the death of the mother or for which a delay will create grave peril of irreversible loss of major bodily function or an equivalent injury to the mother:  Provided, That an independent physician concurs with the physician's clinical judgment; or

(2) Clear clinical medical evidence that the fetus has severe congenital defects or terminal disease or is not expected to be delivered; or

(3) The individual is a victim of incest or the individual is a victim of rape when the rape is reported to a law-enforcement agency.

(b) The Legislature intends that the state's Medicaid program not provide coverage for abortion on demand and that abortion services be provided only as expressly provided in this section.


§9-3-1015.  Coverage for patient cost of clinical trials.


(a) The provisions of this section apply to health plans regulated by this article.

(b) This section does not apply to a policy, plan or contract paid for under Title XVIII of the Social Security Act.

(c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial, as a result of:

(1) Treatment provided for a life-threatening condition; or

(2) Prevention of, early detection of or treatment studies on cancer.

(d) The coverage under subsection (c) of this section is required if:

(1)(A) The treatment is being provided or the studies are being conducted in a Phase II, Phase III or Phase IV clinical trial for cancer and has therapeutic intent; or

(B) The treatment is being provided in a Phase II, Phase III or Phase IV clinical trial for any other life-threatening condition and has therapeutic intent;

(2) The treatment is being provided in a clinical trial approved by:

(A) One of the national institutes of health;

(B) An NIH cooperative group or an NIH center;

(C) The FDA in the form of an investigational new drug application or investigational device exemption;

(D) The federal department of Veterans Affairs; or

(E) An institutional review board of an institution in the state which has a multiple project assurance contract approved by the office of protection from research risks of the national institutes of health;

(3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;

(4) There is no clearly superior, noninvestigational treatment alternative;

(5) The available clinical or preclinical data provide a reasonable expectation that the treatment will be more effective than the noninvestigational treatment alternative;

(6) The treatment is provided in this state.  If the treatment is provided outside of this state, the treatment must be approved by the payor designated in subsection (a) of this section;

(7) Reimbursement for treatment is subject to all coinsurance, copayment and deductibles and is otherwise subject to all restrictions and obligations of the health plan; and

(8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no greater than that provided by an in network or contracting provider.  Coverage shall not be required if the out of network or noncontracting provider will not accept this level of reimbursement.

(e) Payment for patient costs for a clinical trial is not required by the provisions of this section, if:

(1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug, or to gain approval or coverage relating to additional clinical indications for an existing drug; or

(2) The purpose of the clinical trial is designed to keep a generic version of a drug from becoming available on the market; or

(3) The purpose of the clinical trial is to gain approval of or coverage for a reformulated or repackaged version of an existing drug.

(f) Any provider billing a third party payor for services or products provided to a patient in a clinical trial shall provide written notice to the payor that specifically identifies the services as part of a clinical trial.

(g) Notwithstanding any provision in this section to the contrary, coverage is not required for Phase I of any clinical trial.


§9-3-1016.  Maternity and infant care.


  (a) The bureau shall:

(1) Extend the Medicaid coverage to pregnant women and their newborn infants to one hundred fifty percent of the federal poverty level.

(2) Participate in the Medicaid program for indigent children and pregnant women established by Congress under the Consolidated Omnibus Budget Reconciliation Act (COBRA), Public Law 99-272, the Sixth Omnibus Budget Reconciliation Act (SOBRA), Public Law 99-504, and the Omnibus Budget Reconciliation Act (OBRA), Public Law 100-203.

(3) As provided under COBRA, SOBRA, and OBRA, infants shall be included under the Medicaid coverage with all children eligible for Medicaid coverage, whose family incomes are at or below one hundred percent of the federal poverty level and continuing until such children reach the age of eight years.

(4) Elect the federal options provided under COBRA, SOBRA, and OBRA, impacting pregnant women and children below the poverty level. No provision in this article shall restrict the bureau in exercising new options provided by, or to be in compliance with, new federal legislation that further expands eligibility for children and pregnant women.

(5) Shall increase to no less than $600 the reimbursement rates under the Medicaid program for prenatal care, delivery and post-partum care.

(b) In order to be in compliance with the provisions of OBRA, through legislative rules, the bureau shall ensure that pregnant women and children whose incomes are above the Temporary Assistance to Needy Families (TANF) payment level are not required to apply for entitlements under the TANF program as a condition of eligibility for Medicaid coverage.  Further, the department shall develop a short, simplified pregnancy/pediatric application of no more than three pages, paralleling the simplified OBRA standards.

(c) Any woman who establishes eligibility pursuant to this section shall continue to be treated as an eligible individual without regard to any change in income of the family of which she is a member until the end of the sixty day period beginning on the last day of her pregnancy.


§9-3-1017. Requiring substance abuse treatment providers to give pregnant woman priority access to services.


Substance abuse treatment or recovery service providers that accept Medicaid shall give pregnant women priority in accessing services and shall not refuse access to services solely due to pregnancy as long as the provider's services are appropriate for pregnant women.


§9-3-1018.  Authority to examine witnesses, administer oaths and take affidavits.


The secretary, the commissioner and employees of the department may administer oaths, examine witnesses and take and certify affidavits in any matter or thing pertaining to the business of the department and the bureau.


§9-3-1019.  Authority to subpoena witnesses and documents when investigating the provision of medical assistance programs.


The secretary and the commissioner and every duly appointed hearing examiner may apply, on behalf of any party, to the circuit court of the county in which the hearing is to be held, or the circuit court in which the subpoena or subpoena duces tecum is to be served, or the judge of either such court in vacation, for the issuance of a subpoena or subpoena duces tecum to compel the attendance of witnesses or the production of documents, before any hearing or administrative tribunal convened to consider suspension or termination of any person or corporation from providing services under the medical assistance programs administered by the department.  The application for a subpoena duces tecum shall state with particularity any papers or documents requested and upon hearing, the applicant or party shall notify the court or judge, as the case may be, of the necessity therefor in such hearing.  The court or judge thereof, prior to issuing the requested subpoena or subpoena duces tecum, may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense.  The party who applies for the subpoena or subpoena duces tecum shall pay the sheriff's fees required for service of these documents.


§9-3-1020.  Collection of copayments by health care providers; penalties.


(a) The secretary and/or the commissioner shall institute a program which requires the payment and collection of copayments.  The program shall conform with Section 447.53, Chapter 42 of the Code of Federal Regulations, and the amount of the copayments shall be determined in accordance with the provisions of Sections 447.54 and 447.55, Chapter 42 of the Code of Federal Regulations.  The secretary shall complete all federal requirements necessary to implement this section, including the submission of any amendment to the state Medicaid plan.

(b) Any individual or entity receiving reimbursement from this state under the medical assistance program of the Social Security Act is required to collect the copayments:  Provided, That in accordance with Section 447.15, Chapter 42 of the Code of Federal Regulations, no individual or entity shall refuse care or services to any Medicaid-eligible individual because that individual is unable to pay the copayment.  The amount of copayments collected shall be reported to the secretary.

(c) A person, firm, corporation or other entity who willfully, by means of a false statement or representation, or by concealment of any material fact, or by other fraudulent scheme, device or artifice on behalf of himself or herself, itself or others, fails to attempt to collect copayments as required by this section, shall be liable for payment to the department of a civil money penalty in the amount of $100 for each occurrence of willful failure to collect a required copayment.

(d) If it comes to the attention of the secretary or commissioner that a person or other entity is failing to attempt to collect copayments as mandated, the matter shall be referred to the Medicaid Fraud Control Unit for investigation and referral for prosecution pursuant to the provisions of this chapter.


§9-3-1021.  Preferred drug list and drug utilization review.


(a) The Legislature finds that it is a public necessity that trade secrets, rebate amounts, percentage of rebate, manufacturer’s pricing and supplemental rebates that are contained in records, as well as any meetings at which this information is negotiated or discussed need confidentiality to insure the most significant rebates available for the state.  Information pertaining to similar agreements with the federal government and negotiated by pharmaceutical manufacturers is confidential pursuant to 42 U.S.C. 1396r-8. 

(b) A rebate as a percentage of average manufacture price is confidential under federal law and the federal rebate could be made known if not protected by state law.  Because of the protection afforded by federal law, if this information is not protected by state law, manufacturers will not be willing to offer a rebate in West Virginia. 

(c) Further, the Legislature finds that the number and value of supplemental rebates obtained by the department or bureau will increase, to the benefit of Medicaid recipients, if information related to the supplemental rebates is protected in the records of the department and bureau and in meetings in which this information is disclosed because manufacturers will be assured they will not to be placed at a competitive disadvantage by exposure of this information.

(d) The secretary and/or the commissioner may develop a preferred drug list, in accordance with federal law, which shall consist of federally approved drugs. The department or bureau, through administration of the Medicaid program, may reimburse, where applicable and in accordance with federal law, entities providing and dispensing prescription drugs from the preferred drug list.

(e) The secretary or commissioner may negotiate and enter into agreements with pharmaceutical manufacturers for supplemental rebates for Medicaid or reimbursable drugs.

(f) The provisions of §5A-3-1 et seq. of this code do not apply to any contract or contracts entered into under this section.

(g) Trade secrets, rebate amounts, percentage of rebate, manufacturer’s pricing and supplemental rebates which are contained in the department’s or bureau’s records and those of its agents with respect to supplemental rebate negotiations and which are prepared pursuant to a supplemental rebate agreement are confidential and exempt from all of §29B-1-1 et seq. of this code.

(h) Those portions of any meetings of the committee at which trade secrets, rebate amounts, percentage of rebate, manufacturer’s pricing and supplemental rebates are disclosed for discussion or negotiation of a supplemental rebate agreement are exempt from all of §6-9A-1 et seq. of this code.

(i) The secretary or commissioner shall monitor and evaluate the effects of this provision on Medicaid recipients, the Medicaid program, physicians and pharmacies.

(j) The commissioner shall implement a drug utilization review program to assure that prescribing and dispensing of drug products result in the most rational cost-effective medication therapy for Medicaid patients.

(k) Any moneys received in supplemental rebates will be deposited in the Medical Services Fund.

(l) Within the limits of federal and state law, the secretary may consolidate preferred drug lists for the Medicaid agency, the Children’s Health Insurance Program and the Public Employees Insurance Agency for purposes of streamlined administration and cost savings. 


§9-3-1022.  Medicaid program; chronic kidney disease; evaluation and classification.


(a) Any enrollee in Medicaid who is eligible for services and who has a diagnosis of diabetes or hypertension or, who has a family history of kidney disease, shall receive coverage for an evaluation for chronic kidney disease through routine clinical laboratory assessments of kidney function.

(b) Any enrollee who has received a diagnosis of kidney disease shall be classified as a chronic kidney patient.

(c) The diagnostic criteria used to define chronic kidney disease should be those generally recognized through clinical practice guidelines which identify chronic kidney disease or its complications based on the presence of kidney damage and level of kidney function.

(d) Medicaid providers shall be educated by the Bureau for Public Health in an effort to increase the rate of evaluation and treatment for chronic kidney disease.  Providers should be made aware of:

(1) Managing risk factors, which prolong kidney function or delay progression to kidney replacement therapy;

(2) Managing risk factors for bone disease and cardiovascular disease associated with chronic kidney disease;

(3) Improving nutritional status of chronic kidney disease patients; and

(4) Correcting anemia associated with chronic kidney disease.


§9-3-1023. Annual report to Joint Committee on Government and Finance regarding treatment for autism spectrum disorders provided by the Bureau for Medical Services.


On or before January 1 each year, the bureau shall file an annual report with the Joint Committee on Government and Finance describing the number of enrolled individuals with autism spectrum disorder, including the fiscal and administrative impact of treatment of autism spectrum disorders, and any recommendations the agency may have as to changes in law or policy related to such disorder. In addition, the bureau shall provide such other information as may be requested by the Joint Committee on Government and Finance as it may from time to time request.

§9-3-1024. Medicaid managed care reporting.


(a) Beginning January 1, 2016, and annually thereafter, the Bureau for Medical Services shall submit an annual report by May of each year to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Health and Human Resources Accountability that includes, but is not limited to, the following information for all managed care organizations:

(1) The name and geographic service area of each managed care organization that has contracted with the bureau.

(2) The total number of health care providers in each managed care organization broken down by provider type and specialty and by each geographic service area.

(3) The monthly average and total of the number of members enrolled in each organization broken down by eligibility group.

(4) The percentage of clean claims paid each provider type within thirty calendar days and the average number of days to pay all claims for each managed care organization

(5) The number of claims denied or pended by each managed care organization.

(6) The number and dollar value of all claims paid to non-network providers by claim type for each managed care organization.

(7) The number of members choosing the managed care organization and the number of members auto-enrolled into each managed care organization, broken down by managed care organization.

(8) The amount of the average per member per month payment and total payments paid to each managed care organization.

(9) A comparison of nationally recognized health outcomes measures as required by the contracts the managed care organizations have with the bureau.

(10) A copy of the member and provider satisfaction survey report for each managed care organization.

(11) A copy of the annual audited financial statements for each managed care organization.

(12) A brief factual narrative of any sanctions levied by the department against a managed care network.

(13) The number of members, broken down by each managed care organization, filing a grievance or appeal and the total number and percentage of grievances or appeals that reversed or otherwise resolved a decision in favor of the member.

(14) The number of members receiving unduplicated outpatient emergency services and urgent care services, broken down by managed care organization.

(15) The number of total inpatient Medicaid days broken down by managed care organization and aggregated by facility type.

(16) The following information concerning pharmacy benefits broken down by each managed care organization and by month:

(A) Total number of prescription claims;

(B) Total number of prescription claims denied;

(C) Average adjudication time for prescription claims;

(D) Total number of prescription claims adjudicated within thirty days;

(E) Total number of prescription claims adjudicated within ninety days;

(F) Total number of prescription claims adjudicated after thirty days; and

(G) Total number of prescription claims adjudicated after ninety days.

(17) The total number of authorizations by service.

(18) Any other metric or measure which the Bureau of Medical Services deems appropriate for inclusion in the report.

(19) For those managed care plans that are accredited by a national accreditation organization they shall report their most recent annual quality ranking for their Medicaid plans offered in West Virginia.

(20) The medical loss ratio and the administrative cost of each managed care organization and the amount of money refunded to the state if the contract contains a medical loss ratio.

(b) The report required in subsection (a) of this section shall also include information regarding fee-for-service providers that is comparable to that required in subsection (a) of this section for managed care organizations: Provided, That any report regarding Medicaid fee for service should be designed to determine the medical and pharmacy costs for those benefits similar to ones provided by the managed care organizations and the data shall be reflective of the population served.

(c) The report required in subsection (a) of this section shall also include for each of the five most recent fiscal years, annual cost information for both managed care organizations and fee-for-service providers of the Medicaid program expressed in terms of:

(1) Aggregate dollars expended by both managed care organizations and fee-for-service providers of the Medicaid programs per fiscal years; and

(2) Annual rate of cost inflation from prior fiscal year for both managed care organizations and fee-for-service providers of the Medicaid program.


PART ELEVEN.  MEDICAID UNCOMPENSATED CARE FUND.

§9-3-1101.  Legislative findings.


The Legislature finds and declares the following:

(1) Federal Medicaid laws encourage special recognition of disproportionate share hospitals for Medicaid reimbursement purposes.

(2) These same federal laws permit and encourage the state to fund the Medicaid program through flexible means, including public and private contributions to serve as the state share for purposes of federal financial participation.

(3) Because of state budget constraints, moneys paid to disproportionate share hospitals under the Medicaid program have not been sufficient to allow the hospitals to recover adequate reimbursement for the costs associated with providing appropriate services to Medicaid clients of this state.

(4) The policy of this state is to encourage disproportionate share hospitals to continue providing health care services to the needy citizens of West Virginia; such encouragement and support are increasingly important when combined with federal financial participation.

(5) Cost shifting is a serious problem and it is the intent of the Legislature to reduce cost shifting.


§9-3-1102.  Creation of Medicaid uncompensated care fund.


(a) There is continued in the State Treasury a special revolving fund known as the “Medicaid Uncompensated Care Fund”.  All moneys deposited or accrued in this fund shall be used exclusively:

(1) To provide the state's share of the federal Medicaid program funds in order to improve inpatient payments to disproportionate share hospitals; and

(2) To cover administrative cost incurred by the department and the bureau and associated with the Medicaid program and this fund.  No expenditures may be made to cover said administrative costs except as appropriated by the Legislature.

(b) Moneys from the following sources may be placed into the fund:

(1) All public funds transferred by any public agency to the Medicaid program for deposit in the fund as contemplated or permitted by applicable federal Medicaid laws;

(2) All private funds contributed, donated or bequeathed by corporations, individuals or other entities to the fund as contemplated and permitted by applicable federal Medicaid laws;

(3) Interest which accrued on amounts in the fund from sources identified in subdivisions (1) and (2) of this subsection; and

(4) Federal financial participation matching the amounts referred to in subdivisions (1), (2) and (3) of this subsection, in accordance with Section 1902 (a) (2) of the Social Security Act.

(c) Any balance remaining in the “Medicaid Uncompensated Care Fund” at the end of any state fiscal year shall not revert to the State Treasury but shall remain in this fund and shall be used only in a manner consistent with this article.

(d) Moneys received into the fund shall not be counted or credited as part of the legislative general appropriation to the state Medicaid program.

(e) The fund shall be administered by the bureau.  Moneys shall be disbursed from the fund on a quarterly basis.  The secretary and/or commissioner shall implement the provisions of this article prior to the receipt of any transfer, contribution, donation or bequest from any public or private source.

(f) All moneys expended from the fund after receipt of federal financial participation shall be allocated to reimbursement of inpatient charges and fees of eligible disproportionate share hospitals.  Except for the payment of administrative costs as provided in this section, appropriation from this fund for any other purposes is void.


§9-3-1103.  Medical services trust fund.


(a) The Legislature finds that certain dedicated revenues should be preserved in trust for the purpose of stabilizing the state's Medicaid program and providing services for future federally mandated population groups in conjunction with federal reform.

(b) There is continued a special account within the department, which shall be an interest-bearing account and may be invested in the manner permitted by §12-6-9 of this code, designated the Medical Services Trust Fund.  Funds paid into the account shall be derived from the following sources:

(1) Transfers, by intergovernmental transfer, from the hospital services revenue account provided in chapter 16 of this code;

(2) All interest or return on investment accruing to the fund;

(3) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation; and

(4) Any appropriations by the Legislature which may be made for this purpose.

(c) Expenditures from the fund are limited to the following:

(1) Payment of backlogged billings from providers of Medicaid services when cash-flow problems within the medical services fund do not permit payment of providers within federally required time limits; and

(2) Funding for services to future federally mandated population groups in conjunction with federal health care reform:  Provided, That other Medicaid funds have been exhausted for the federally mandated expansion.

(3) Payment of the required state match for Medicaid disproportionate share payments in order to receive federal financial participation in the disproportionate share hospital program.

(d) Expenditures from the fund solely for the purposes set forth in subsection (c) of this section shall be authorized in writing by the Governor, who shall determine in his or her discretion whether any expenditure shall be made, based on the best interests of the state as a whole and its citizens, and shall designate the purpose of the expenditure.  Upon authorization signed by the Governor, funds may be transferred to the Medical Services Fund:  Provided, That all expenditures from the “Medical Services Trust Fund” shall be reported forthwith to the Joint Committee on Government and Finance.


§9-3-1104.  Expansion of coverage to children and terminally ill.


The department shall:

(1) Provide a streamlined application form, which shall be no longer than two pages, for all families applying for medical coverage for children under any of the programs set forth in this section; and

(2) Provide the option of hospice care to terminally ill West Virginians who otherwise qualify for Medicaid.

(3) Accelerate the Medicaid option for coverage of Medicaid to all West Virginia children whose family income is below one hundred percent of the federal poverty guideline.


§9-3-1105.  Legislative reports.


(a) The secretary shall make an annual report to the Legislature on the use of the Medicaid Uncompensated Care Fund.

(b) The Health Care Authority shall make an annual report to the Legislature on the impact of improved Medicaid inpatient payments resulting from the fund on nongovernmental payor health care costs.


PART TWELVE.  MEDICAID BUY-IN PROGRAM.

§9-3-1201.  Legislative findings.


(a) The Legislature finds that there are many individuals in this state who have disabilities that qualify them for state or federal assistance and who are nonetheless willing and able to enter the workforce, but do not do so out of fear of losing essential medical care.  As a result, the state realizes increased costs in fully supporting these disabled individuals who, in turn, suffer under an additional disability of being deprived of the additional income, dignity and self-sufficiency derived by being engaged in competitive employment.

(b) The Legislature finds that establishing a Medicaid buy-in program for certain individuals with disabilities will assist them in becoming independent of medical assistance by enabling them to enter the workforce without fear of losing essential medical care.


§9-3-1202.  Medicaid buy-in program; funding.


(a) The Medicaid buy-in program for working individuals with disabilities is continued to provide Medicaid benefits to individuals who are disabled and employed, as authorized pursuant to Section 201 of the federal Ticket to Work and Work Incentives Improvement Act of 1999 (P.L. 106-170, 42 U.S.C. 1396, et seq.). 

(b) Funding for the buy-in program shall be from funds appropriated by the Legislature, premiums paid, enrollment fees and any federal matching funding available to the program.


§9-3-1203.  Eligibility guidelines.


(a) To be eligible to participate in the buy-in program an individual shall:

(1) Be a resident of the State of West Virginia;

(2) Have a disability that is defined and determined by the Social Security Administration, the department or the bureau;

(3) Be at least sixteen years of age but not more than sixty-four years of age;

(4) Be engaged in competitive employment, including self-employment or nontraditional work that results in remuneration at or above minimum wage in an integrated setting;

(5) Have countable resources that do not exceed the resource limit for the supplemental security income program;

(6) Have countable income that does not exceed two hundred fifty percent of the federal poverty level;

(7) Have total countable unearned income, using the social security income program methodology, that does not exceed the federal benefit rate plus the general income exclusion; and

(8) Except as provided in this article, not have countable resources that exceed the resource limits for the federal supplemental security income program.

(b) The secretary or commissioner shall establish a method of providing notice of the availability of participation in the Medicaid buy-in program.  The secretary or commissioner shall develop all forms and notices necessary to implement the provisions of this article, including forms for application to the program, determination of eligibility and continued participation and notices that advise all eligible buy-in participants of the rights, benefits, obligations and participation requirements of the program, including, but not limited to, notice of fees, premiums, premium adjustments, periodic review, length of time for which benefits may be paid and disqualifying factors.


§9-3-1204.  Exceptions to qualifying factors.


(a) An individual who is enrolled in the buy-in program and who no longer meets the eligibility requirements of the basic coverage group due to an improvement in the individual’s medical condition may continue to be eligible for Medicaid coverage under the buy-in program if the individual meets the following requirements:

(1) The individual continues to have a severe medically determinable impairment as determined by the department or the bureau and as defined and recognized by federal law;

(2) The individual is employed and earning a monthly wage that is not less than the federal minimum hourly wage times forty;

(3) The individual does not have income or countable resources in excess of the limits established for the basic coverage group;

(4) The individual is at least sixteen years of age and less than sixty-five years of age;

(5) The individual pays any premiums or other cost sharing required pursuant to this chapter; and

(6) The individual meets all other eligibility requirements of this section.

(b) An individual who is enrolled in the buy-in program and who is unable to maintain employment for involuntary reasons, including temporary leave due to a health problem or involuntary termination, may continue to be eligible for Medicaid coverage under the buy-in program if the individual meets the following requirements:

(1) Within thirty days after the date on which the individual becomes unemployed, the individual, or an authorized representative of the individual, submits a written request to the office that the individual’s Medicaid coverage be continued;

(2) The individual maintains a connection to the workforce during the individual’s continued eligibility period by participating in at least one of the following activities:

(A) Enrollment in a state or federal vocational rehabilitation program;

(B) Enrollment or registration with the office of workforce development;

(C) Participation in a transition from school-to-work program;

(D) Participation with an approved provider of employment services;

(E) Provision of documentation from the individual’s employer that the individual is on temporary involuntary leave;

(F) The individual does not have income or countable resources in excess of the limits established by this section;

(G) The individual is at least sixteen years of age and less than sixty-five years of age;

(H) The individual pays any premiums or other cost sharing required by this section; and

(I) The individual meets all other eligibility requirements of this section.

(c) The department or bureau shall continue Medicaid coverage under the buy-in program for an individual described in subsection (b) of this section for up to six months from the date of the individual’s involuntary loss of employment.

(d) If an individual is ineligible for continued coverage under the buy-in program because he or she fails to meet the requirements of subsection (b) of this section or has already fulfilled twelve months of continuing eligibility, the individual shall be required to meet the eligibility requirements of another available Medicaid program in order to continue to be eligible for Medicaid benefits.


§9-3-1205.  Fees, premiums and periodic reviews.


(a) The department or bureau shall charge a $50 enrollment fee to all participants in the Medicaid buy-in program.  Upon payment of the enrollment fee, the first month’s premium payment is waived.  Medicaid coverage begins on the first day of the month following payment of the enrollment fee.

(b) The department or bureau shall develop a sliding scale of premiums for individuals participating in the buy-in program.  The sliding scale shall:

 (1) Be based on the annual gross income of the individual; and

(2) Provide for a minimum premium of $15 and a maximum monthly premium not to exceed three and one-half percent of the individual’s gross monthly income.

(c) Subject to the minimum and maximum amounts described in this section, the department or bureau may annually adjust the scale of premiums charged for participation in the Medicaid buy-in program.

(d) The department or bureau shall biannually review the amount of the premium that an individual is required to pay pursuant to this section.

(e) The department or bureau may increase the premium required only after conducting a review.

(f) The department or bureau shall decrease the premium that an eligible buy-in participant is required to pay if:

(1) The individual notifies the office of a change in income or family size; and

(2) The sliding scale adopted by the department applied to the individual’s changed circumstances prescribes a premium for the individual that is lower than the premium the individual is paying.

(g) The department or bureau shall establish administrative procedures regarding premiums for the buy-in program, including:

(1) The effect of nonpayment of a premium; and

(2) The collection of premiums.

(h) The department or bureau shall establish criteria to base the biannual redetermination of disability required for an individual participating in the buy-in program on the individual’s medical evidence, including evidence of physical or mental impairment.

(i) In conducting the biannual redetermination described in this section, the department or bureau may not determine that an individual participating in the buy-in program is no longer disabled solely on the individual’s:

(1) Participation in employment;

(2) Earned income; or

(3) Income from self-employment.


§9-3-1206.  Benefits of the Medicaid buy-in program.


(a) Except as otherwise provided in this article, an eligible buy-in participant shall receive the same benefits that he or she would otherwise receive as a recipient of Medicaid benefits, including home health care services.

(b) Except as otherwise provided in this article, an eligible buy-in participant is subject to the same obligations and requirements, including cost sharing, that he or she would otherwise be subject to as recipient of Medicaid benefits.


§9-3-1207.  Analytical criteria and reporting requirements.


(a) The secretary or commissioner shall establish criteria to determine the effectiveness of the Medicaid buy-in program and continued Medicaid coverage through Section 1619 of the federal Social Security Act (42 U.S.C. §1382h).  The criteria shall include an analysis of the following:

(1) The number of individuals with disabilities who are:

(A) Enrolled in the buy-in program; or

(B) Receiving Medicaid through Section 1619 of the federal Social Security Act (42 U.S.C. §1382h);

(2) The amount of state revenues resulting from premiums paid by participants in the buy-in program; and

(3) The amount of state costs incurred as a result of implementing the buy-in program, including administrative costs and costs of providing services.

(b) In addition to the criteria required pursuant to this section, the secretary may establish criteria to determine the following:

(1) Comparative costs of Medicaid funded services for participants in the buy-in program and work incentives created through Section 1619 of the federal Social Security Act (42 U.S.C. §1382h) before and after employment;

(2) The number of supplemental security income and social security disability insurance recipients in West Virginia who are no longer dependent on, or who have reduced dependence on, public assistance or health care entitlement services, other than Medicaid or the Children’s Health Insurance Program, due to participation in the buy-in program or work incentives created through Section 1619 of the federal Social Security Act (42 U.S.C. §1382h);

(3) The number of individuals with severe disabilities who are no longer dependent on, or who have reduced dependence on, public benefits or services, other than Medicaid or the Children’s Health Insurance Program, due to income or support services received through participation in the buy-in program or work incentives created through Section 1619 of the federal Social Security Act (42 U.S.C. §1382h); and

(4) The change in the number of buy-in program participants or participants in work incentives created through Section 1619 of the federal Social Security Act (42 U.S.C. §1382h) who have health care needs and related services covered through employer based benefit programs.

(c) In evaluating the effectiveness of the state’s work incentives initiatives for individuals with disabilities, the secretary or commissioner:

(1) Shall collaborate with other state agencies on data collection; and

(2) May consult with an independent contractor to collect data on the criteria required by this section.

(d) The department, the bureau, secretary and commissioner shall provide an annual report of its evaluation of the Medicaid buy-in program performed pursuant to the requirements of this section to the Joint Committee on Government and Finance no later than December 31 of each year.


§9-3-1208.  Advisory council; rulemaking.


(a) The secretary or commissioner shall establish a Medicaid buy-in program advisory council, consisting of representatives from the state Medicaid agency, the state rehabilitation agency, the Bureau of Child and Family Services, the West Virginia Statewide Independent Living Council, the West Virginia State Rehabilitation Council, the West Virginia Developmental Disabilities Council, the West Virginia Mental Health Planning Council and the Center for Excellence in Disabilities at West Virginia University.

(b) The secretary or commissioner shall submit legislative rules for review and input to the advisory council prior to release for public comment and shall consider any recommendations of the advisory council before adopting final rules.

(c) The secretary or commissioner shall propose legislative rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code as may be needed to administer and maintain the Medicaid buy-in program.


PART THIRTEEN. FRAUD AND ABUSE IN THE MEDICAID PROGRAM.

§9-3-1301.  Medicaid Fraud Control Unit; powers and duties.


The Medicaid Fraud Control Unit shall be continued and shall have the following powers and duties:

(1) The investigation and referral for prosecution of all violations of applicable state and federal laws pertaining to the provision of goods or services under the medical programs of the state including the Medicaid program.

(2) The investigation of abuse, neglect or financial exploitation of residents in board and care facilities and patients in health care facilities which receive payments under the medical programs of the state.

(3) To cooperate with the federal government in all programs designed to detect and deter fraud and abuse in the medical programs of the state.

(4) To cooperate with the federal government to detect and deter fraud and abuse in the medical programs of the state.

(5) To employ and train personnel to achieve the purposes of this article and to employ legal counsel, investigators, Auditors and clerical support personnel and other personnel as are deemed necessary from time to time to accomplish the purposes herein.


§9-3-1302.  Investigations; procedure.


(a) When the unit has credible information that indicates a person has engaged in an act or activity which is subject to prosecution under this article, the unit may make an investigation to determine if the act has been committed and, to the extent necessary for that purpose, the secretary, or an employee of the unit designated by the secretary, may administer oaths or affirmations and issue subpoenas for witnesses and documents relevant to the investigation, including information concerning the existence, description, nature, custody, condition and location of any book, record, documents or other tangible thing and the identity and location of persons having knowledge of relevant facts or any matter reasonably calculated to lead to the discovery of admissible evidence.

(b) When the unit has probable cause to believe that a person has engaged in an act or activity which is subject to prosecution pursuant to this article, or §61-2-29 of this code, either before, during, or after an investigation pursuant to this section, the secretary, or an employee of the unit designated by the secretary, may request search warrants and present and swear or affirm criminal complaints. 

(c) If documents necessary to an investigation of the unit shall appear to be located outside the state, such documents shall be made available by the person or entity within the jurisdiction of the state having control over such documents either at a convenient location within the state or, upon payment of reasonable and necessary expenses to the unit for transportation and inspection, at the place outside the state where such documents are maintained.

(d) Upon failure of a person to comply with a subpoena or subpoena duces tecum or failure of a person to give testimony without lawful excuse and upon reasonable notice to all persons affected thereby, the unit may apply to the circuit court of the county in which compliance is sought for appropriate orders to compel obedience with the provisions of this section.

(e) The unit shall not make public the name or identity of a person whose acts or conduct is investigated pursuant to this section or the facts disclosed in the investigation except as the same may be used in any legal action or enforcement proceeding brought pursuant to this article or any other provision of this code.


§9-3-1303.  Agency lawyers assisting prosecutors.


Attorneys employed and assigned to the Medicaid Fraud Control Unit created by the provisions of this article shall cooperate in investigations to deter fraud and abuse with are conducted by the Inspector General created pursuant to the provisions of this chapter and shall assist the Attorney General and prosecuting attorneys  in the prosecution of criminal violations of this article.


§9-3-1304.  Applications for medical assistance; false statements or representations; criminal penalties.


(a) A person shall not knowingly make or cause to be made a false statement or false representation of any material fact in an application for medical assistance under the medical programs of the department.

(b) A person shall not knowingly make or cause to be made a false statement or false representation of any material fact necessary to determine the rights of any other person to medical assistance under the medical programs of the department.

(c) A person shall not knowingly and intentionally conceal or fail to disclose any fact with the intent to obtain medical assistance under the medical programs of the department to which the person or any other person is not entitled.

(d) Any person found to be in violation of subsection (a), (b) or (c) of this section is guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility not less than one nor more than ten years, or shall be fined not to exceed $10,000 or both fined and imprisoned.


§9-3-1305.  Bribery; false claims; conspiracy; criminal penalties.


(a) A person shall not solicit, offer, pay, or receive any unlawful remuneration, including any kickback, rebate or bribe, directly or indirectly, with the intent of causing an expenditure of moneys from the Medical Services Fund established pursuant to this chapter, which is not authorized by applicable laws or rules and regulations.

(b) A person shall not make or present or cause to be made or presented to the department a claim under the medical programs of the department knowing the claim to be false, fraudulent or fictitious.

(c) A person shall not enter into an agreement, combination or conspiracy to obtain or aid another to obtain the payment or allowance of a false, fraudulent or fictitious claim under the medical programs of the department.

(d) Any person found to be in violation of subsection (a), (b) or (c) of this section is guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility not less than one nor more than ten years or shall be fined not to exceed $10,000, or both fined and imprisoned.


§9-3-1306.  Venue for criminal offenses.


In addition to other venues permitted by state law, a criminal prosecution pursuant to this article may be commenced in the circuit court of Kanawha County or of any county in which:

(1) The defendant is conducting business; or

(2) Any of the conduct constituting a violation of any provision of this article has occurred.


§9-3-1307.  Civil remedies.


(a) Any person, firm, corporation or other entity which willfully, by means of a false statement or representation, or by concealment of any material fact, or by other fraudulent scheme, devise or artifice on behalf of himself, herself, it’s  or others, obtains or attempts to obtain benefits or payments or allowances under the medical programs of the department to which he or she is not entitled, or, in a greater amount than that to which he or she is entitled, shall be liable to the department in an amount equal to three times the amount of such benefits, payments or allowances to which he or she is not entitled, and shall be liable for the payment of reasonable attorney fees and all other fees and costs of litigation.

(b) No criminal action or indictment need be brought against any person, firm, corporation or other entity as a condition for establishing civil liability hereunder.

(c) A civil action pursuant to this section may be prosecuted and maintained on behalf of the department by the Attorney General and the Attorney General’s assistants or a prosecuting attorney and the prosecuting attorney’s assistants or by any attorney in contract with or employed by the department to provide such representation.


§9-3-1308.  Liability of employees of the department.


There is no civil liability on the part of, and no cause of action shall arise against the secretary, the department, its employees or its agents for any action taken by them in good faith and in the lawful performance of their powers and duties pursuant to this article.


§9-3-1309.  Licensing of vehicles for use by the Medicaid fraud control unit.


For purposes of the responsibilities assigned the unit pursuant to this article, personnel of the unit shall be permitted to operate vehicles owned or leased for the state displaying Class A registration plates.


§9-3-1310.  Remedies and penalties not exclusive.


The remedies and penalties provided in this article governing the operation of the medical programs of the department are in addition to those remedies and penalties provided elsewhere by law.


PART FOURTEEN.  ASSIGNMENT OF RIGHTS.

§9-3-1401.  Assignment of rights.


(a) Submission of an application to the department for medical assistance is, as a matter of law, an assignment of the right of the applicant or his or her legal representative to recover from third parties past medical expenses paid for by the Medicaid program.

(b) At the time an application for medical assistance is made, the department shall include a statement along with the application that explains that the applicant has assigned all of his or her rights as provided in this section and the legal implications of making this assignment.

(c) This assignment of rights does not extend to Medicare benefits.

(d) This section does not prevent the recipient or his or her legal representative from maintaining an action for injuries or damages sustained by the recipient against any third-party and from including, as part of the compensatory damages sought to be recovered, the amounts of his or her past medical expenses.

(e) The department shall be legally subrogated to the rights of the recipient against the third party.

(f) The department shall have a priority right to be paid first out of any payments made to the recipient for past medical expenses before the recipient can recover any of his or her own costs for medical care.

(g) A recipient is considered to have authorized all third-parties to release to the department information needed by the department to secure or enforce its rights as assignee pursuant to this chapter.


§9-3-1402. Notice requirement for claims and civil actions.


(a) A recipient's legal representative shall provide notice to the department within 60 days of asserting a claim against a third party. If the claim is asserted in a formal civil action, the recipient's legal representative shall notify the department within 60 days of service of the complaint and summons upon the third party by causing a copy of the summons and a copy of the complaint to be served on the department as though it were named a party defendant.

(b) If the recipient has no legal representative and the third party knows or reasonably should know that a recipient has no representation then the third party shall provide notice to the department within sixty days of receipt of a claim or within thirty days of receipt of information or documentation reflecting the recipient is receiving Medicaid benefits, whichever is later in time.

(c) In any civil action implicated by this section, the department may file a notice of appearance and shall thereafter have the right to file and receive pleadings, intervene and take other action permitted by law.

(d) The department shall provide the recipient and the third party, if the recipient is without legal representation, notice of the amount of the purported subrogation lien within thirty days of receipt of notice of the claim. The department shall provide related supplements in a timely manner, but no later than fifteen days after receipt of a request for same.


§9-3-1403. Notice of settlement requirement.


(a) A recipient or his or her representative shall notify the department of a settlement with a third-party and retain in escrow an amount equal to the amount of the subrogation lien asserted by the department. The notification shall include the amount of the settlement being allocated for past medical expenses paid for by the Medicaid program. Within 30 days of the receipt of any such notice, the department shall notify the recipient of its consent or rejection of the proposed allocation. If the department consents, the recipient or his or her legal representation shall issue payment out of the settlement proceeds in a manner directed by the secretary or his or her designee within 30 days of consent to the proposed allocation.

(b) If the total amount of the settlement is less than the department's subrogation lien, then the settling parties shall obtain the department's consent to the settlement before finalizing the settlement. The department shall advise the parties within 30 days and provide a detailed itemization of all past medical expenses paid by the department on behalf of the recipient for which the department seeks reimbursement out of the settlement proceeds.

(c) If the department rejects the proposed allocation, the department shall seek a judicial determination within 30 days and provide a detailed itemization of all past medical expenses paid by the department on behalf of the recipient for which the department seeks reimbursement out of the settlement proceeds.

(1) If judicial determination becomes necessary, the trial court is required to hold an evidentiary hearing. The recipient and the department shall be provided ample notice of the same and be given just opportunity to present the necessary evidence, including fact witness and expert witness testimony, to establish the amount to which the department is entitled to be reimbursed pursuant to this section.

(2) The department shall have the burden of proving by a preponderance of the evidence that the allocation agreed to by the parties was improper. For purposes of appeal, the trial court's decision should be set forth in a detailed order containing the requisite findings of fact and conclusions of law to support its rulings.

(d) Any settlement by a recipient with one or more third-parties which would otherwise fully resolve the recipient's claim for an amount collectively not to exceed $20,000 shall be exempt from the provisions of this section.

(e) Nothing herein prevents a recipient from seeking judicial intervention to resolve any dispute as to allocation prior to effectuating a settlement with a third party.


§9-3-1404.  Department failure to respond to notice of settlement.


If the department fails to appropriately respond to a notification of settlement, the amount to which the department is entitled to be paid from the settlement shall be limited to the amount of the settlement the recipient has allocated toward past medical expenses.


§9-3-1405. Penalty for failure to notify the department.


A legal representative acting on behalf of a recipient or third party that fails to comply with the provisions of this section is liable to the department for all reimbursement amounts the department would otherwise have been entitled to collect pursuant to this section but for the failure to comply. Under no circumstances may a pro se recipient be penalized for failing to comply with the provisions of this section.


§9-3-1406.  Miscellaneous provisions relating to trial.


(a) Where an action implicated by this section is tried by a jury, the jury may not be informed at any time as to the subrogation lien of the department.

(b) Where an action implicated by this section is tried by judge or jury, the trial judge shall, or in the instance of a jury trial, require that the jury, identify precisely the amount of the verdict awarded that represents past medical expenses.

(c) Upon the entry of judgment on the verdict, the court shall direct that upon satisfaction of the judgment any damages awarded for past medical expenses be withheld and paid directly to the department, not to exceed the amount of past medical expenses paid by the department on behalf of the recipient.


§9-3-1407. Attorneys' fees.


Irrespective of whether an action or claim is terminated by judgment or settlement without trial, from the amount required to be paid to the department there shall be deducted the reasonable costs and attorneys' fees attributable to the amount in accordance with, and in proportion to, the fee arrangement made between the recipient and his or her attorney of record so that the department shall bear the pro-rata share of the reasonable costs and attorneys' fees. If there is no recovery, the department shall under no circumstances be liable for any costs or attorneys' fees expended in the matter.


§9-3-1408.  Class actions and multiple plaintiff actions not authorized.


Nothing in this article shall authorize the department to institute a class action or multiple plaintiff action against any manufacturer, distributor or vendor of any product to recover medical care expenditures paid for by the Medicaid program.


§9-3-1409. Secretary's authority.


The secretary or his or her designee may compromise, settle and execute a release of any claim relating to the department's right of subrogation, in whole or in part.


§9-3-1410.  Notice of action or claim.


(a) If either the recipient or the department brings an action or claim against a third person, the recipient, his or her attorney or the department shall, within thirty days of filing the action, give to the other written notice of the action or claim by certified mail. This notice shall contain the name of the third person and the court in which the action is brought. 

(b) If the department institutes said action, the notice shall advise the recipient of their right to bring such action in their own name, in which they may include as a part of their claim the sums claimed by the department. 

(c) Proof of the notice shall be filed in said action subject to the notice and intent procedure as outlined in this article.  If an action or claim is brought by either the recipient or the department, the other may, at any time before trial, become a party to the action, or shall consolidate his or her action or claim with the other if brought independently:  Provided, That this consolidation or entry as a party does not delay the proceedings.


§9-3-1411.  Release of information.


(a) All recipients of medical assistance under the Medicaid program are considered to have authorized all third parties, including, but not limited to, insurance companies and providers of medical care, to release to the department information needed by the department to secure or enforce its rights as assignee under this chapter.

(b) As a condition of doing business in the state, health insurers, including self-insured plans, group health plans as defined in §6074(a) of the Employee Retirement Income Security Act of 1974, service benefit plans, third-party administrators, managed care organizations, pharmacy benefit managers or other parties that are by statute, contract or agreement, legally responsible for payment of a claim for a health care item or service are required to comply with the following:

(1) Upon the request of the bureau, or its contractor, provide information to determine the period that the service recipients, their spouse or dependents may be or may have been covered by the health insurer, including the nature of the coverage that is or was provided by the health insurer, the name, address, date of birth, Social Security number, group number, identifying number of the plan, and effective and termination dates.  The information shall be provided in a format suitable for electronic data matches, conducted under the direction of the bureau no less than monthly or as prescribed by the secretary or the commissioner. The health insurer must respond within sixty working days after receipt of a written request for enrollment data from the department, the bureau or its contractor;

(2) Accept the right of the bureau of recovery and the assignment to the state of any right of an individual or other entity to payment from the party for an item or service for which payment has been made by the bureau;

(3) Respond to any inquiry by the bureau regarding a claim for payment for any health care item or service that is submitted not later than three years after the date of the provision of the health care item or service; and

(4) Accept a claim submitted by the bureau regardless of the date of submission of the claim, the type or format of the claim form, lack of preauthorization or the failure to present proper documentation at the point-of-sale that is the basis of the claim. The claim shall be submitted by the bureau within the three-year period beginning on the date on which the item or service was furnished and any action by the bureau to enforce its right with respect to the claim shall be commenced within six years of the bureau submission of the claim.


§9-3-1412.  Right of the department to recover medical assistance.


(a) Upon the death of a person who was fifty-five years of age or older at the time the person received assistance consisting of nursing facility services, home and community-based services, and related hospital and prescription drug services, the department, in addition to any other available remedy, may file a claim or lien against the estate of the recipient for the total amount of medical assistance provided by Medicaid for nursing facility services, home and community-based services, and related hospital and prescription drug services provided for the benefit of the recipient.  Claims so filed shall be classified as, and included in, the class of debts due the state.

(b) The department may recover pursuant to subsection (a) only after the death of the individual’s surviving spouse, if any and only after such time as the individual has no surviving children under the age of twenty-one, or when the individual has no surviving children who meet the Social Security Act’s definition of blindness or permanent and total disability.

(c) The state shall have the right to place a lien upon the property of individuals who are inpatients in a nursing facility, intermediate care facility for individuals with an intellectual disability or other medical institution who, after notice and an opportunity for a hearing, the state has deemed to be permanently institutionalized.  This lien shall be in an amount equal to Medicaid expenditures for services provided by a nursing facility, intermediate care facility for individuals with an intellectual disability or other medical institution, and shall be rendered against the proceeds of the sale of property except for a minimal amount reserved for the individual’s personal needs.  Any such lien dissolves upon that individual’s discharge from the medical institution.  The secretary has authority to compromise or otherwise reduce the amount of this lien in cases where enforcement would create a hardship.

(d) No lien may be imposed on an individual’s home when the home is the lawful residence of:

(1) The spouse of the individual;

(2) The individual’s child who is under the age of twenty-one;

(3) The individual’s child meets the Social Security Act’s definition of blindness or permanent and total disability; or

(4) The individual’s sibling has an equity interest in the home and was residing in the home for a period of at least one year immediately before the date of the individual’s admission to a medical institution.

(e) The filing of a claim, pursuant to this section, neither reduces or diminishes the general claims of the department, except that the department may not receive double recovery for the same expenditure.  The death of the recipient neither extinguishes or diminishes any right of the department to recover.  Nothing in this section affects or prevents a proceeding to enforce a lien pursuant to this section or a proceeding to set aside a fraudulent conveyance.

(f) Any claim or lien imposed pursuant to this section is effective for the full amount of medical assistance provided by Medicaid for nursing facility services, home and community-based services, and related hospital and prescription drug services.  The lien attaches and is perfected automatically as of the beginning date of medical assistance, the date when a recipient first receives treatment for which the department may be obligated to provide medical assistance.  A claim may be waived by the department, if the department determines, pursuant to applicable federal law and rules and regulations, that the claim will cause substantial hardship to the surviving dependents of the deceased.

PART FIFTEEN. WEST VIRGINIA CHILDREN'S HEALTH INSURANCE PROGRAM.


§9-3-1501. Expansion of health care coverage to children; creation of program; legislative directives.

(a) It is the intent of the Legislature to expand access to health services for eligible children and to pay for this coverage by using private, state and federal funds to purchase those services or purchase insurance coverage for those services. To achieve this intention, the West Virginia Children's Health Insurance Program is created subject to federal funding. The program shall be administered by the Bureau for Medical Services within the Department of Human Services in accordance with the provisions of this article and the applicable provisions of Title XXI of the Social Security Act of 1997. Participation in the program may be made available to families of eligible children, subject to eligibility criteria and processes to be established, which does not create an entitlement to coverage in any person. Nothing in this article requires any appropriation of State General Revenue Funds for the payment of any benefit provided in this article. In the event that this article conflicts with the requirements of federal law, federal law governs.

(b) In developing a Children's Health Insurance Program that operates with the highest degree of simplicity and governmental efficiency, the board shall avoid duplicating functions available in existing agencies and may enter into interagency agreements for the performance of specific tasks or duties at a specific or maximum contract price.

(c) In developing benefit plans, the board may consider any cost savings, administrative efficiency or other benefit to be gained by considering existing contracts for services with state health plans and negotiating modifications of those contracts to meet the needs of the program.

(d) In order to enroll as many eligible children as possible in the program created by this article and to expedite the effective date of their health insurance coverage, the board shall develop and implement a plan whereby applications for enrollment may be taken at any primary care center or other health care provider, as determined by the director, and transmitted electronically to the program's offices for eligibility screening and other necessary processing. The board may use any funds available to it in the development and implementation of the plan, including grant funds or other private or public moneys.


§9-3-1502. Reporting requirements.

(a) Annually on January 1, the director shall report to the Governor and the Legislature regarding the number of children enrolled in the program or programs; the average annual cost per child per program; the estimated number of remaining uninsured children; and the outreach activities for the previous year. The report shall include any information that can be obtained regarding the prior insurance and health status of the children enrolled in programs created pursuant to this article. The report shall include information regarding the cost, quality and effectiveness of the health care delivered to enrollees of this program; satisfaction surveys; and health status improvement indicators. The agency, in conjunction with other state health and insurance agencies, shall develop indicators designed to measure the quality and effectiveness of children's health programs, which information shall be included in the annual report.

(b) On a quarterly basis, the director shall provide reports to the Legislative Oversight Commission on Health and Human Resources Accountability on the number of children served, including the number of newly enrolled children for the reporting period and current projections for future enrollees; outreach efforts and programs; statistical profiles of the families served and health status indicators of covered children; the average annual cost of coverage per child; the total cost of children served by provider type, service type and contract type; outcome measures for children served; reductions in uncompensated care; performance with respect to the financial plan; and any other information as the Legislative Oversight Commission on Health and Human Resources Accountability may require.


§9-3-1503. Children's health policy board created; qualifications and removal of members; powers; duties; meetings; and compensation.

(a) There is hereby created the West Virginia children's health insurance board, which shall consist of the director of the Public Employees Insurance Agency, the Secretary of Human Services, or his or her designee, and six citizen members appointed by the Governor, one of whom shall represent children's interests and one of whom shall be a certified public accountant, to assume the duties of the office immediately upon appointment, pending the advice and consent of the Senate. A member of the Senate, as appointed by the Senate president and a member of the House of Delegates, as appointed by the Speaker of the House of Delegates, shall serve as nonvoting members.

(b) Of the five citizen members first appointed, one shall serve one year, two shall serve two years and two shall serve three years. All subsequent appointments shall be for terms of three years, except that an appointment to fill a vacancy shall be for the unexpired term only: Provided, That the citizen member to be appointed upon the reenactment of this section during the regular session of the Legislature, two thousand eighteen, shall serve a term which corresponds to the term of the member initially appointed to serve one year. Three of the citizen members shall have at least a bachelor's degree and experience in the administration or design of public or private employee or group benefit programs and the children's representative shall have experience that demonstrates knowledge in the health, educational and social needs of children.

(c) No more than three citizen members may be members of the same political party and no board member shall represent or have a pecuniary interest in an entity reasonably expected to compete for contracts under this article. Members of the board shall assume the duties of the office immediately upon appointment.

(d) The director of the agency shall serve as the chairperson of the board. No member may be removed from office by the Governor except for official misconduct, incompetence, neglect of duty, neglect of fiduciary duty or other specific responsibility imposed by this article or gross immorality. Vacancies in the board shall be filled in the same manner as the original appointment.

(e) The purpose of the board is to develop plans for health services or health insurance that are specific to the needs of children and to bring fiscal stability to this program through development of an annual financial plan designed in accordance with the provisions of this article.

(f) Notwithstanding any other provisions of this code to the contrary, any insurance benefits offered as a part of the programs designed by the board are exempt from the minimum benefits and coverage requirements of §33-15 -1 et seq. and §33-16-1 et seq. of this code.

(g) The board may consider adopting the maximum period of continuous eligibility permitted by applicable federal law, regardless of changes in a family's economic status, so long as other group insurance does not become available to a covered child.

(h) The board shall meet at the time and place as specified by the call of the chairperson or upon the written request to the chairperson by at least two members. Notice of each meeting shall be given in writing to each member by the chairperson at least three days in advance of the meeting. Four voting members shall constitute a quorum.

(i) For each day or portion of a day spent in the discharge of duties pursuant to this article, the board shall pay each of its citizen members the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties.


§9-3-1504. Director of the Children's Health Insurance Program; qualifications; powers and duties.

(a) An agency director shall be appointed by the Governor, with the advice and consent of the Senate, and shall be responsible for the implementation, administration and management of the Children's Health Insurance Program created under this article. The director shall have at least a bachelor's degree and a minimum of three years’ experience in health insurance administration.  The Director shall report directly to the Commissioner of the Bureau for Medical Services as set forth in this article.

(b) The director shall employ any administrative, technical and clerical employees that are required for the proper administration of the program and for the work of the board. He or she shall present recommendations and alternatives for the design of the annual plans and other actions undertaken by the board in furtherance of this article.

(c) The director is responsible for the administration and management of the program and has the power and authority to make all rules necessary to effectuate the provisions of this article. Nothing in this article may be construed as limiting the director's otherwise lawful authority to manage the program on a day-to-day basis.

(d) The director has exclusive authority to execute any contracts that are necessary to effectuate the provisions of this article: Provided, That the board shall approve all contracts for the provision of services or insurance coverage under the program. The provisions of §5A-3-1 et seq. of this code, relating to the division of purchasing of the department of finance and administration, shall not apply to any contracts for any health insurance coverage, health services, or professional services authorized to be executed under the provisions of this article: Provided, however, That before entering into any contract the director shall invite competitive bids from all qualified entities and shall deal directly with those entities in presenting specifications and receiving quotations for bid purposes. The director shall award those contracts on a competitive basis taking into account the experience of the offering agency, corporation, insurance company or service organization. Before any proposal to provide benefits or coverage under the plan is selected, the offering agency, corporation, insurance company or service organization shall provide assurances of utilization of essential community health service providers to the greatest extent practicable. In evaluating these factors, the director may employ the services of independent, professional consultants. The director shall then award the contracts on a competitive basis.

(e) The director shall issue requests for proposals on a regional or statewide basis from essential community health service providers for defined portions of services under the children's health insurance plan and shall, to the greatest extent practicable, either contract directly with, or require participating providers to contract with, essential community health service providers to provide the services under the plan.

(f) Subject to the advice and consent of the board, the director may require reinsurance of primary contracts, as contemplated in the provisions of §33-4-15 and §33-4-15a of this code.

§9-3-1505. Financial plans requirements.


(a) Benefit plan design. -- All financial plans required by this section shall establish: (1) The design of a benefit plan or plans; (2) the maximum levels of reimbursement to categories of health care providers; (3) any cost containment measures for implementation during the applicable fiscal year; and (4) the types and levels of cost to families of covered children. To the extent compatible with simplicity of administration, fiscal stability and other goals of the program established in this article, the financial plans may provide for different levels of costs based on ability to pay.

(b) Actuary requirements. -– Any financial plan, or modifications, approved or proposed by the board shall be submitted to and reviewed by an actuary before final approval. The financial plan shall be submitted to the Governor and the Legislature with the actuary's written professional opinion that all estimated program and administrative costs of the agency under the plan, including incurred but unreported claims, will not exceed ninety percent of the funding available to the program for the fiscal year for which the plan is proposed and that the financial plan allows for no more than thirty days of accounts payable to be carried over into the next fiscal year. This actuarial requirement is in addition to any requirement imposed by Title XXI of the Social Security Act of 1997.

(c) Annual plans. -- The board shall review implementation of its current financial plan in light of actual experience and shall prepare an annual financial plan for each fiscal year during which the board remains in existence. For each fiscal year, the Governor shall provide an estimate of requested appropriations and total funding available to the board no later than October 15, preceding the fiscal year. The board shall afford interested and affected persons an opportunity to offer comment on the plan at a public meeting of the board and, in developing any proposed plan under this article, shall solicit comments in writing from interested and affected persons. The board shall submit its final, approved financial plan, subject to the actuarial requirements of this article, to the Governor and to the Legislature no later than January 1, preceding the fiscal year. The financial plan for a fiscal year becomes effective and shall be implemented by the director on July 1, of that fiscal year. Annual plans developed pursuant to this subsection are subject to the provisions of subsections (a) and (b) of this section and the following guidelines:

(1) The aggregate actuarial value of the plan established as the benchmark plan should be considered as a targeted maximum or limitation in developing the benefits package;

(2) All estimated program and administrative costs, including incurred but not reported claims, shall not exceed ninety percent of the funding available to the program for the applicable fiscal year; and

(3) The state's interest in achieving health care services for all its children at less than two hundred percent of the federal poverty guideline shall take precedence over enhancing the benefits available under this program.

(d) The provisions of chapter 29A of this code do not apply to the preparation, approval and implementation of the financial plans required by this section.

(e) The board shall meet no less than once each quarter to review implementation of its current financial plan and, using actuarial data, shall make those modifications to the plan that are necessary to ensure its fiscal stability and effectiveness of service. The board may not increase the types and levels of cost to families of covered children during its quarterly review except in the event of a true emergency. The board may not expand the population of children to whom the program is made available except in its annual plan: Provided, That upon the effective date of this article, the board may expand coverage to any child eligible under the provisions of Title XXI of the Social Security Act of 1997: Provided, however, That the board shall implement cost-sharing provisions for children who may qualify for such expanded coverage and whose family income exceeds one hundred fifty percent of the federal poverty guideline. Such cost-sharing provisions may be imposed through any one or a combination of the following: enrollment fees, premiums, copayments and deductibles.

(f) The board may develop and implement programs that provide for family coverage and/or employer subsidies within the limits authorized by the provisions of Title XXI of the Social Security Act of 1997 or the federal regulations promulgated thereunder: Provided, That any family health insurance coverage offered by or through the program shall be structured so that the board assumes no financial risk: Provided, however, That families covered by any insurance offered by or through the program shall be subject to cost-sharing provisions which may include, without limitation, enrollment fees, premiums, copayments and/or deductibles, as determined by the board, which shall be based on ability to pay: Provided further, That enrollment fees or premiums, if imposed, may be paid, in whole or in part, through employer subsidies or other private funds or public funds, subject to availability, all as allowed by applicable state and federal law.

(g) For any fiscal year in which legislative appropriations differ from the Governor's estimate of general and special revenues available to the agency, the board shall, within thirty days after passage of the budget bill, make any modifications to the plan necessary to ensure that the total financial requirements of the agency for the current fiscal year are met.


§9-3-1506. Coverage for patient cost of clinical trials.

(a) The provisions of this section apply to the health plans regulated by this part.

(b) This section does not apply to a policy, plan or contract paid for under Title XVIII of the Social Security Act.

(c) A policy, plan or contract subject to this section shall provide coverage for patient cost to a member in a clinical trial, as a result of:

(1) Treatment provided for a life-threatening condition; or

(2) Prevention of, early detection of or treatment studies on cancer.

(d) The coverage under subsection (c) of this section is required if:

(1)(A) The treatment is being provided or the studies are being conducted in a Phase II, Phase III or Phase IV clinical trial for cancer and has therapeutic intent; or

(B) The treatment is being provided in a Phase II, Phase III or Phase IV clinical trial for any other life-threatening condition and has therapeutic intent;

(2) The treatment is being provided in a clinical trial approved by:

(A) One of the national institutes of health;

(B) An NIH cooperative group or an NIH center;

(C) The FDA in the form of an investigational new drug application or investigational device exemption;

(D) The federal department of Veterans Affairs; or

(E) An institutional review board of an institution in the state which has a multiple project assurance contract approved by the office of protection from research risks of the national institutes of health;

(3) The facility and personnel providing the treatment are capable of doing so by virtue of their experience, training and volume of patients treated to maintain expertise;

(4) There is no clearly superior, noninvestigational treatment alternative;

(5) The available clinical or preclinical data provide a reasonable expectation that the treatment will be more effective than the noninvestigational treatment alternative;

(6) The treatment is provided in this state: Provided, That, if the treatment is provided outside of this state, the treatment must be approved by the payor designated in subsection (a) of this section;

(7) Reimbursement for treatment is subject to all coinsurance, copayment and deductibles and is otherwise subject to all restrictions and obligations of the health plan; and

(8) Reimbursement for treatment by an out of network or noncontracting provider shall be reimbursed at a rate which is no greater than that provided by an in network or contracting provider. Coverage shall not be required if the out of network or noncontracting provider will not accept this level of reimbursement.

(e) Payment for patient costs for a clinical trial is not required by the provisions of this section, if:

(1) The purpose of the clinical trial is designed to extend the patent of any existing drug, to gain approval or coverage of a metabolite of an existing drug, or to gain approval or coverage relating to additional clinical indications for an existing drug; or

(2) The purpose of the clinical trial is designed to keep a generic version of a drug from becoming available on the market; or

(3) The purpose of the clinical trial is to gain approval of or coverage for a reformulated or repackaged version of an existing drug.

(f) Any provider billing a third party payor for services or products provided to a patient in a clinical trial shall provide written notice to the payor that specifically identifies the services as part of a clinical trial.

(g) Notwithstanding any provision in this section to the contrary, coverage is not required for Phase I of any clinical trial.


§9-3-1507. Modified benefit plan for children of families of low income between two hundred and three hundred percent of the poverty level.

The Legislature finds:

(1) That there exists a number of families of low to moderate income without access to affordable health insurance coverage, whose children are denied plan participation because their family income exceeds two hundred percent of the federal poverty level;

(2) That this exclusion imposes a heavy burden on many families by forcing them to elect whether to spend money on their children's health care or for their food, clothing and educational needs;

(3) That a plan should be developed and considered whereby children in families with an income between two hundred and three hundred percent of the federal poverty level would contribute approximately twenty to twenty-five percent of the actual cost of coverage resulting in no additional cost to state government; and

(4) (A) That, while the primary goal of any plan will be the improvement of health care for these children, a successful plan for extending this coverage will benefit the state by improving the economy by allowing parents of these children to spend more for goods and services and by lowering future medical expenditures, uncompensated care and the other long-term adverse economic effects related to having a segment of the adult population which has been deprived of adequate medical care during childhood.

(B) The board is directed to conduct a study of all available means to develop a viable, modified plan to enroll the children of those families having a level of income between two hundred and three hundred percent of the federal poverty level and to consider that such a plan should charge an affordable premium and may be phased in over a two-year period.

(C) The board is further directed to study total program costs related to the implementation of a viable modified plan to expand coverage with the design requiring no additional state dollars and to study the long-term effect on the state budget.

(D) The board is directed to report its findings and recommendations to the Joint Committee on Government and Finance at its monthly meeting of August, 2004.


§9-3-1508. Modified benefit plan implementation.

(a) Upon approval by the Centers for Medicare and Medicaid Services, the board shall implement a benefit plan for uninsured children of families with income between two hundred and three hundred percent of the federal poverty level.

(b) The benefit plans offered pursuant to this section shall include services determined to be appropriate for children, but may vary from those currently offered by the board.

(c) The board shall structure the benefit plans for this expansion to include premiums, coinsurance or copays and deductibles. The board shall develop the cost sharing features in such a manner as to keep the program fiscally stable without creating a barrier to enrollment. Such features may include different cost-sharing features within this group based upon the percentage of the federal poverty level.

(d) Provider reimbursement schedules shall be no lower than the reimbursement provided for the same services under the plans offered in §5-16-1 et seq. of this code.

(e) All provisions of this article are applicable to this expansion unless expressly addressed in this section.

(f) Nothing in this section may be construed to require any appropriation of State General Revenue Funds for the payment of any benefit provided pursuant to this section, except for the state appropriation used to match the federal financial participation funds. In the event that federal funds are no longer authorized for participation by individuals eligible at income levels above two hundred percent, the board shall take immediate steps to terminate the expansion provided for in this section and notify all enrollees of such termination. In the event federal appropriations decrease for the programs created pursuant to Title XXI of the Social Security Act of 1997, the board is directed to make those decreases in this expansion program before making changes to the programs created for those children whose family income is less than two hundred percent of the federal poverty level.

(g) The board is directed to report no less than quarterly to the Legislative Oversight Commission on Health and Human Resources Accountability on the development, implementation and progress of the expansion authorized in this section.


§9-3-1509. Coverage for treatment of autism spectrum disorders.

(a) To the extent that the diagnosis, evaluation and treatment of autism spectrum disorders are not already covered by this agency, on or after January 1, 2012, a policy, plan or contract subject to this section shall provide coverage for such diagnosis, evaluation and treatment, for individuals ages eighteen months to eighteen years. To be eligible for coverage and benefits under this section, the individual must be diagnosed with autism spectrum disorder at age eight or younger. Such policy shall provide coverage for treatments that are medically necessary and ordered or prescribed by a licensed physician or licensed psychologist and in accordance with a treatment plan developed from a comprehensive evaluation by a certified behavior analyst for an individual diagnosed with autism spectrum disorder.

(b) The coverage shall include, but not be limited to, applied behavior analysis. Applied behavior analysis shall be provided or supervised by a certified behavior analyst. The annual maximum benefit for applied behavior analysis required by this subsection shall be in an amount not to exceed $30,000 per individual, for three consecutive years from the date treatment commences. At the conclusion of the third year, coverage for applied behavior analysis required by this subsection shall be in an amount not to exceed $2,000 per month, until the individual reaches eighteen years of age, as long as the treatment is medically necessary and in accordance with a treatment plan developed by a certified behavior analyst pursuant to a comprehensive evaluation or reevaluation of the individual. this section shall not be construed as limiting, replacing or affecting any obligation to provide services to an individual under the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq., as amended from time to time, or other publicly funded programs. Nothing in this section shall be construed as requiring reimbursement for services provided by public school personnel.

(c) The certified behavior analyst shall file progress reports with the agency semiannually. In order for treatment to continue, the agency must receive objective evidence or a clinically supportable statement of expectation that:

(1) The individual's condition is improving in response to treatment; and

(2) A maximum improvement is yet to be attained; and

(3) There is an expectation that the anticipated improvement is attainable in a reasonable and generally predictable period of time.

(d) On or before January 1 each year, the agency shall file an annual report with the Joint Committee on Government and Finance describing its implementation of the coverage provided pursuant to this section. The report shall include, but shall not be limited to, the number of individuals in the plan utilizing the coverage required by this section, the fiscal and administrative impact of the implementation, and any recommendations the agency may have as to changes in law or policy related to the coverage provided under this section. In addition, the agency shall provide such other information as may be requested by the Joint Committee on Government and Finance as it may from time to time request.

(e) For purposes of this section, the term:

(1) "Applied Behavior Analysis" means the design, implementation, and evaluation of environmental modifications using behavioral stimuli and consequences, to produce socially significant improvement in human behavior, including the use of direct observation, measurement, and functional analysis of the relationship between environment and behavior.

(2) "Autism spectrum disorder" means any pervasive developmental disorder, including autistic disorder, Asperger's Syndrome, Rett syndrome, childhood disintegrative disorder, or Pervasive Development Disorder as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders of the American Psychiatric Association.

(3) "Certified behavior analyst" means an individual who is certified by the Behavior Analyst Certification Board or certified by a similar nationally recognized organization.

(4) "Objective evidence" means standardized patient assessment instruments, outcome measurements tools or measurable assessments of functional outcome. Use of objective measures at the beginning of treatment, during and after treatment is recommended to quantify progress and support justifications for continued treatment. The tools are not required, but their use will enhance the justification for continued treatment.

(f) To the extent that the application of this section for autism spectrum disorder causes an increase of at least one percent of actual total costs of coverage for the plan year the agency may apply additional cost containment measures.

(g) To the extent that the provisions of this section require benefits that exceed the essential health benefits specified under section 1302(b) of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, as amended, the specific benefits that exceed the specified essential health benefits shall not be required of the West Virginia Children's Health Insurance Program.

§9-3-1510. West Virginia children's health fund.


(a) There is hereby created in the state Treasury a special revolving fund to be known as the "West Virginia children's health fund", which shall be an interest-bearing account. All moneys deposited or accrued in this fund shall be used exclusively:

(1) To provide the state's share of the children's health fund;

(2) To cover administrative costs associated with the children's health program; and

(3) To cover outreach activities.

(b) Moneys from the following sources may be placed into the fund:

(1) All public funds appropriated by the Legislature or transferred by any public agency as contemplated or permitted by applicable federal program laws;

(2) All private moneys contributed by corporations, individuals or other entities to the fund as contemplated and permitted by applicable federal and state laws;

(3) Any accrued interest; and

(4) Federal financial participation matching the amounts referred to in subdivisions (1), (2) and (3) of this subsection, in accordance with Section 1902 (a) (2) of the Social Security Act.

(c) Any balance remaining in the children's health fund at the end of any state fiscal year shall not revert to the state Treasury but shall remain in this fund and shall be used only in a manner consistent with this article.

(d) Notwithstanding the provisions of §12-2-2 of this code, funds of the West Virginia children's health fund may not be redesignated for any purpose other than those set forth in this subsection. All state and private moneys received by the program shall be deposited in the West Virginia consolidated investment pool with the West Virginia Investment Management Board, with the interest income a proper credit to all such funds.


§9-3-1511. Termination and reauthorization.

(a) The program established in this article abrogates and shall be of no further force and effect, without further action by the Legislature, upon the occurrence of any of the following:

(1) The date of entry of a final judgment or order by a court of competent jurisdiction which disallows the program;

(2) The effective date of any reduction in annual federal funding levels below the amounts allocated and/or projected in Title XXI of the Social Security Act of 1997;

(3) The effective date of any federal rule or regulation negating the purposes or effect of this article; or

(4) For purposes of subdivisions (2) and (3) of this subsection, if a later effective date for such reduction or negation is specified, such date will control.

(b) Upon termination of the board and notwithstanding any provisions to the contrary, the director may change the levels of costs to covered families only in accordance with rules proposed to the Legislature pursuant to the provisions of chapter 29A of this code.


§9-3-1512. Public-private partnerships.

The board and the director are authorized to work in conjunction with a nonprofit corporation organized pursuant to the corporate laws of the state, structured to permit qualification pursuant to section 501(c) of the Internal Revenue Code for purposes of assisting the children's health program and funded from sources other than the state or federal government. Members of the board may sit on the board of directors of the private nonprofit corporation.


§9-3-1513. Assignment of rights; right of subrogation by children's health insurance agency to the rights of recipients of medical assistance; rules as to effect of subrogation.

(a) Submission of an application to the children's health insurance agency for medical assistance is, as a matter of law, an assignment of the right of the applicant or legal representative thereof, to recovery from personal insurance or other sources, including, but not limited to, liable third parties, to the extent of the cost of children's health insurance agency services paid for by the children's health insurance agency program. This assignment of rights does not extend to Medicare benefits. At the time the application is made, the children's health insurance agency shall include a statement along with the application that explains that the applicant has assigned his or her rights and the legal implications of making an assignment as provided in this section.

(b) If medical assistance is paid or will be paid to a provider of medical care on behalf of a recipient of medical assistance because of any sickness, injury, disease or disability, and another person is legally liable for the expense, either pursuant to contract, negligence or otherwise, the children's health insurance agency shall have a right to recover full reimbursement from any award or settlement for the medical assistance from the other person, or from the recipient of the assistance if he or she has been reimbursed by the other person. The children's health insurance agency shall be legally assigned the rights of the recipient against the person so liable, but only to the extent of the reasonable value of the medical assistance paid and attributable to the sickness, injury, disease or disability for which the recipient has received damages. When an action or claim is brought by a medical assistance recipient or by someone on his or her behalf against a third party who may be liable for the injury, disease, disability or death of a medical assistance recipient, any settlement, judgment or award obtained is subject to the claim of the children's health insurance agency for reimbursement of an amount sufficient to reimburse the children's health insurance agency the full amount of benefits paid on behalf of the recipient under the medical assistance program for the injury, disease, disability or death of the medical assistance recipient. The claim of the children's health insurance agency assigned by the recipient may not exceed the amount of medical expenses for the injury, disease, disability or death of the recipient paid by the children's health insurance agency on behalf of the recipient. The right of subrogation created in this section includes all portions of the cause of action, by either settlement, compromise, judgment or award, notwithstanding any settlement allocation or apportionment that purports to dispose of portions of the cause of action not subject to the subrogation. Any settlement, compromise, judgment or award that excludes or limits the cost of medical services or care does not preclude the children's health insurance agency from enforcing its rights under this section. The children's health insurance agency may compromise, settle and execute a release of any claim, in whole or in part.

(c) Nothing in this section shall be construed so as to prevent the recipient of medical assistance from maintaining an action for injuries received by them against any other person and from including therein, as part of the compensatory damages sought to be recovered, the amount or amounts of his or her medical expenses, even though the person received medical assistance in the payment of the medical expenses, in whole or in part.

(d) If the action be tried by a jury, the jury is not to be informed as to the interest of the children's health insurance agency, if any, and the fact is not to be disclosed to the jury at any time. The trial judge shall, upon the entry of judgment on the verdict, direct that an amount equal to the amount of medical assistance given be withheld and paid over to the children's health insurance agency. Irrespective of whether the case be terminated by judgment or by settlement without trial, from the amount required to be paid to the children's health insurance agency there shall be deducted the attorney fees attributable to the amount in accordance with and in proportion to the fee arrangement made between the recipient and his or her attorney of record so that the children's health insurance agency shall bear the pro rata portion of the attorney fees. Nothing in this section shall preclude any person who has received medical assistance from settling any cause of action which he or she may have against another person and delivering to the children's health insurance agency, from the proceeds of the settlement, the sums received by him or her from the children's health insurance agency or paid by the children's health insurance agency for his or her medical assistance. If the other person is aware of or has been informed of the interest of the children's health insurance agency in the matter, it shall be the duty of the person to whose benefit the release inures to withhold so much of the settlement as may be necessary to reimburse the children's health insurance agency to the extent of its interest in the settlement. No judgment, award of or settlement in any action or claim by a medical assistance recipient to recover damages for injuries, disease or disability, in which the children's health insurance agency has interest, shall be satisfied without first giving the children's health insurance agency notice and reasonable opportunity to establish its interest. The children's health insurance agency shall have sixty days from receipt of written notice to advise the recipient or his or her representative in writing of the children's health insurance agency's desire to establish its interest through the assignment. If no written intent is received within the sixty-day period, then the recipient may proceed and in the event of full recovery forward to the children's health insurance agency the portion of the recovery proceeds less the children's health insurance agency's share of attorney's fees and costs expended in the matter. In the event of less than full recovery the recipient and the children's health insurance agency shall agree as to the amount to be paid to the children's health insurance agency for its claim. If there is no recovery, the children's health insurance agency shall under no circumstances be liable for any costs or attorney's fees expended in the matter. If, after being notified in writing of a subrogation claim and possible liability of the recipient, guardian, attorney or personal representative for failure to subrogate the children's health insurance agency, a recipient, his or her guardian, attorney or personal representative disposes of the funds representing the judgment, settlement or award, without the written approval of the children's health insurance agency, that person shall be liable to the children's health insurance agency for any amount that, as a result of the disposition of the funds, is not recoverable by the children's health insurance agency. In the event that a controversy arises concerning the subrogation claims by the children's health insurance agency, an attorney shall interplead, pursuant to rule twenty-two of the rules of civil procedure, the portion of the recipient's settlement that will satisfy the children's health insurance agency exclusive of attorney's fees and costs regardless of any contractual arrangement between the client and the attorney.

(e) Nothing contained herein shall authorize the children's health insurance agency to institute a class action or multiple plaintiff action against any manufacturer, distributor or vendor of any product to recover children's health insurance agency care expenditures paid for by the children's health insurance agency program.


PART SIXTEEN. MISCELLANEOUS PROVISIONS RELATIVE TO HUMAN SERVICES.


§9-3-1601.  Information and referral services.


(a) Each local office shall compile, maintain and post a current list of donated food banks and other emergency food providers in the area served by the local SNAP office and refer individuals who need food to local programs that may be able to provide assistance.

(b) The department shall use its existing statewide toll free telephone number to provide emergency food information and to refer needy individuals to local programs that may be able to provide assistance.  The department shall publish the telephone number for referrals in the emergency telephone numbers section of local telephone books.  The department shall display this telephone number in all its offices that issue food stamps.

§9-3-1602. Exemption of grants from certain taxes and claims.


Grants of all classes of public assistance received under the provisions of this article shall be exempted from the collection of taxes except sales taxes, from levy of execution, garnishment, suggestion, and any other legal process.


§9-3-1603. Release of liens and reassignment of insurance policies.

All liens and claims upon real and personal property and all assignments of insurance policies, imposed, existing or made under the provisions of chapter one, acts of the Legislature, first extraordinary session, one thousand nine hundred thirty-six, chapter one hundred five, acts of the Legislature, regular session, one thousand nine hundred thirty-nine, chapter seventy-four, acts of the Legislature, regular session, one thousand nine hundred forty-one, chapter one hundred twenty-four, acts of the Legislature, regular session, one thousand nine hundred forty-seven, and chapter one hundred forty-three, acts of the Legislature, regular session, one thousand nine hundred fifty-three, which have not been released or reassigned, shall be released or reassigned by the secretary by the preparation, execution and acknowledgment of a release of each lien or claim and by the delivery of such release to the person or persons entitled thereto for recordation and by a reassignment of each such insurance policy to the person or persons entitled thereto.


§9-3-1604. Recipient of assistance not a pauper.

A recipient of any class of assistance shall not be deemed a pauper by reason of the receipt of such assistance.


§9-3-1605. Recipients of cash grants.

(a) Within such limitations as may be imposed by applicable federal laws, rules and regulations, the department shall make available for public inspection by the thirtieth day of each month a separate alphabetical list of the names and addresses of all persons receiving any class of public assistance in the form of cash grants during the preceding month, together with the amounts of such cash grants. This information shall be delivered to the clerk of each county court in the state who shall immediately file the same in his or her office with respect to persons receiving such cash grants as residents of that county. Such information shall be retained in the files of said clerks of the county courts for a period of two years from the date of receipt thereof. All information other than names, addresses and amounts of such cash grants shall be considered as confidential.

(b) It shall be unlawful, for commercial or political purposes of any nature, for any person or persons, body, association, firm, corporation or other agency to solicit, disclose, receive, make use of, or to authorize, knowingly permit, participate in, or acquiesce in the use of, any lists of names of, or any information concerning, persons applying for or receiving any class of assistance, directly or indirectly derived from the records, papers, files, or communications of the department or acquired in the course of performance of official duties. The violation of this provision is a misdemeanor, punishable upon conviction, by a fine of not more than $1,000 or imprisonment of not more than six months, or both.

(c) For the protection of applicants and recipients of public assistance, the department shall be required to establish reasonable rules and regulations governing the custody, use and preservation of the records, papers, files and communications of the department.


§9-3-1606. Visitation by county employees.

Health officers, physicians, and nurses employed by the county shall, at the request of the Commissioner of the Bureau for Children and Families, make home visits to persons applying for, or receiving, benefits pursuant to this article. 


§9-3-1607. Liability of relatives for support.

(a) The relatives of an indigent person, who are of sufficient ability, shall be liable to support such person in the manner required by the Department of Human Services and to pay the expenses of burial when he or she dies, in the following order:

(1) The children.

(2) The father.

(3) The brothers and sisters.

(4) The mother.

(b) The Commissioner of the Bureau for Children and Families may proceed by motion in the circuit court of the county in which the indigent person may be, against one or more of the relatives liable.

(c) If a relative so liable does not reside in this state and has no estate or debts due him or her within the state by means of which the liability can be enforced against him or her, the other relatives shall be liable as provided by this section, but a relative shall not be compelled to receive the indigent person in his or her own home.

(d) If it appears that a relative liable for the support of an indigent person is unable wholly to support him or her, but is able to contribute toward his or her support, the court may assess upon the relative the proportion which he or she shall be required to contribute either to the past expense incurred by the department or to the future support. The court may assess the residue upon the relatives in the order of their liability.

(e) Payment with interest and costs may be enforced by execution.


§9-3-1608. Funeral expenses for indigent persons; filing of affidavit to certify indigency; penalties for false swearing; payment by department.

(a) The Department of Human Servcies shall pay for reasonable funeral service expenses for indigent persons, in an amount not to exceed $1,250.

(b) For purposes of this section, the indigency of a deceased person is determined by the filing of an affidavit with the department, in a form provided by and determined in accordance with the income guidelines as set forth by the department:

(1) Signed by the heir or heirs-at-law which states that the estate of the deceased person is pecuniarily unable to pay the costs associated with a funeral; or

(2) Signed by the county coroner or the county health officer, the attending physician or other person signing the death certificate or the state medical examiner stating that the deceased person has no heirs or that heirs have not been located after a reasonable search and that the deceased person had no estate or the estate is pecuniarily unable to pay the costs associated with a funeral.

(c) Payment shall be made by the department to the person or persons who have furnished the services and supplies for the indigent person's funeral expenses or to the persons who have advanced payment for same, as the department may determine, pursuant to appropriations for expenditures made by the Legislature for such purpose.

(d) For purposes of this section, "reasonable funeral service expenses" means expenses for services provided by a funeral director for the disposition of human remains.

(e) Any person who knowingly swears falsely in an affidavit required by this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in the county or regional jail for a period of not more than six months, or both.


PART SEVENTEEN.  MISCELLANEOUS PROVISIONS RELATED TO MEDICAID.


§9-3-1701. Agreements between the secretary and three higher education institutions.


Any contract, agreement or memorandum of understanding between the secretary and West Virginia University, West Virginia School of Osteopathic Medicine or Marshall University for services is exempt from the provisions of §5A-3-1 et seq. of this code.


§9-3-1702.  Medicaid-certified nursing homes; screening of applicants and residents for mental illness; reimbursement of hospitals.


(a) The department or the bureau shall cause individuals applying for admission to or residing in a Medicaid-certified nursing home to be screened as required by the Omnibus Budget Reconciliation Act of 1987.

(b) Hospitals shall receive administrative day payment at a rate set by the Medicaid agency to reimburse the hospitals for days required for the screening of Medicaid eligible patients required by subsection (a) of this section.

(c) The secretary may promulgate rules pursuant to the provision of §29A-3-1 et seq. of this code to implement this section.


§9-3-1703.  Nonprofit agency or facility, in receipt of Medicaid moneys; annual accounting.


Any nonprofit health care agency or facility which receives Medicaid moneys shall provide an annual accounting of that facility's or provider's receipts and disbursements, including the total salaries of all employees and administrators. One copy shall be submitted to the Joint Committee on Government and Finance and one copy shall be submitted to the Health Care Authority on or before the January 15 for the preceding year.


§9-3-1704.  Advisory council.


(a) The Medicaid Advisory Council is continued and has those advisory powers and duties as are granted and imposed by this section and elsewhere by law.

(b) The advisory council shall consist of not less than nine members, nor more than fifteen members, all but four of whom shall be appointed by the Commissioner of the Bureau of Medical Services and serve until replaced or reappointed on a rotating basis.

(c)(1) The Commissioner of the Bureau for Public Health and the Commissioner of the Bureau for Medical Services are members ex officio.

(2) The co-chairs of the Legislative Oversight Commission on Health and Human Resources Accountability, or their designees, are nonvoting ex officio members.

(3) The remaining members comprising the council consist of:

(A) One member of recognized ability in the field of medicine and surgery with respect to whose appointment the state Medical Association shall be afforded the opportunity of making nomination of three qualified persons;

(B) One member of recognized ability in the field of dentistry with respect to whose appointment the state Dental Association shall be afforded the opportunity of nominating three qualified persons;

(C) One member chosen from a list of three persons nominated by the West Virginia Primary Care Association;

(D) One member chosen from a list of three persons nominated by the Behavioral Health Providers Association of West Virginia; and

(E) The remaining members chosen from persons of recognized ability in the fields of hospital administration, nursing and allied professions and from consumers groups, including Medicaid recipients, members of the West Virginia Directors of Senior and Community Services, labor unions, cooperatives and consumer- sponsored prepaid group practices plans.

(d) The council shall meet on call of the state Medicaid Agency.

(e) Each member of the advisory council shall receive reimbursement for reasonable and necessary travel expenses for each day actually served in attendance at meetings of the council in accordance with the state's travel regulations.  Requisitions for the expenses shall be accompanied by an itemized statement, which shall be filed with the auditor and preserved as a public record.

(f) The advisory council shall assist the state Medicaid Agency in the establishment of rules, standards and bylaws necessary to carry out the provisions of this section and shall serve as consultants to the state Medicaid Agency in carrying out the provisions of this section.


§9-3-1705.  Secretary to develop Medicaid monitoring and case management.

(a) The secretary shall:

(1) Develop a managed care system to monitor the services provided by the Medicaid program to individual clients;

(2) Develop an independent referral service, including the review of individual cases for abuses of the program; and

(3) Develop a schedule for implementation of the managed care and independent referral system.  The managed care system shall focus on, but not be limited to, the behavioral health and mental health services.

(b) In addition thereto, and in accordance with applicable federal Medicaid laws, the secretary shall prepare recommendations, to be submitted to the Joint Committee on Government and Finance.

(c) In developing recommendations the secretary shall consider as options the following:

(1) Review of Medicaid services which are optional under federal Medicaid law and identification of services to be retained, reduced or eliminated;

(2) The elimination, reduction or phase-out of:

(A) Services which are not generally available to West Virginia citizens not covered under the state's Medicaid program; or

(B) Services which are not generally covered under group policies of insurance made available to employees of employers within the state;

(3) The elimination or reduction of services, or reduction of provider reimbursement rates, for identified services of marginal utility;

(4) Higher reimbursement rates for primary and preventive care;

(5) Changes in fee structure, which may include a system of prospective payments, and may include establishment of global fees for identified services or diagnoses including maternity care;

(6) Utilization caps for certain health care procedures;

(7) Restriction of coverage for cosmetic procedures;

(8) Identification of excessive use of certain health care procedures by individuals and a policy to restrict excessive use;

(9) Identification of services which reduce the need for more costly options for necessary care and retention or expansion of those programs;

(10) Identification of services for which preauthorization is a requirement for Medicaid reimbursement;

(11) Recommendations relating to the development of a demonstration project on long-term care, which demonstration project may be limited to patients with Alzheimer's disease;

(12) A policy concerning the department's procedures for compliance, monitoring and inspection; and

(13) Such other options as may be developed.

(d) The secretary shall utilize in-state health care facilities for inpatient treatment when such facilities are available.   Prior authorization, consistent with applicable federal law, shall be required for out-of-state inpatient treatment.

(e) The secretary shall report to the Joint Committee on Government and Finance on the development and implementation of Medicaid programs that provide incentives to working persons.  The secretary shall consider:

(1) Subsidies for low income working persons;

(2) Individual or small employer buy-ins to the state Medicaid Fund;

(3) Prospective payment systems for primary care physicians in underserved areas; and

(4) A system to improve monitoring of collections, expenditures, service delivery and utilization.

(f) The secretary shall report quarterly to the Joint Committee on Government and Finance regarding provider and facility compliance with federal and state Medicaid laws, including, but not limited to, the following:

(1) The number of inspections conducted during the previous quarter;

(2) Description of programs, services and facilities reviewed;

(3) Findings; and

(4) Recommendations for corrections.

(g) The secretary shall, upon federal certification of the claims management system, ensure that the claims management system processing Medicaid claims provides detailed quarterly financial reports to the Legislative Oversight Commission on Health and Human Resources Accountability.


§9-3-1706. Visitation by county employees.

Health officers, physicians, and nurses employed by the county shall, at the request of the Commissioner of the Bureau for Medical Services, make home visits to persons applying for, or receiving benefits, pursuant to this article. 

§9-3-1707. Medicaid program compact.


(a) The Secretary of the Department of Human Services shall contact West Virginia’s surrounding states to discuss the creation of a compact.  This compact would enable each states’ health care providers to be eligible to be paid for services provided to the other states’ Medicaid participants.

(b) The secretary shall provide a report on the creation of a Medicaid compact to the Legislative Oversight Commission on Health and Human Resources Accountability before October 31, 2019.

§9-3-1708. Supplemental Medicaid reimbursement.


(a) A ground emergency medical transportation services provider, owned or operated by the state or a city, a county, or city and county, that provides services to Medicaid beneficiaries is eligible for supplemental reimbursement.

(b) An eligible provider’s supplemental reimbursement shall be calculated and paid as follows:

(1) The supplemental reimbursement to an eligible provider shall be equal to the amount of federal financial participation received as a result of the claims submitted.

(2) In no instance, may the amount certified, when combined with the amount received from all other sources of reimbursement from the Medicaid program, exceed one hundred percent of actual costs, as determined pursuant to the Medicaid State Plan, for ground emergency medical transportation services.

(3) The supplemental Medicaid reimbursement shall be distributed exclusively to eligible providers under a payment methodology based on ground emergency medical transportation services provided to Medicaid beneficiaries by eligible providers on a per-transport basis or other federally permissible basis. The Department of Human Services shall obtain approval from the Centers for Medicare and Medicaid Services for the payment methodology to be used, and may not make any payment pursuant to this section prior to obtaining that approval.

(c) No funds may be expended from the state fund, general revenue for any supplemental reimbursement paid under this section.

(d) The nonfederal share of the supplemental reimbursement submitted to the federal Centers for Medicare and Medicaid Services for purposes of claiming federal financial participation may be paid only with funds from the governmental entities.

(e) Participation in the program by an eligible provider described in this section is voluntary.

(f) If an applicable governmental entity elects to seek supplemental reimbursement pursuant to this section on behalf of an eligible provider, the governmental entity shall:

(1) Certify, in conformity with the requirements of Section 433.51 of Title 42 of the Code of Federal Regulations, that the claimed expenditures for the ground emergency medical transportation services are eligible for federal financial participation;

(2) Provide evidence supporting the certification as specified by the Department of Human Services;

(3) Submit data as specified by the Department of Human Services to determine the appropriate amounts to claim as expenditures qualifying for federal financial participation; and

(4) Keep, maintain, and have readily retrievable, any records specified by the Department of Human Services to fully disclose reimbursement amounts to which the eligible provider is entitled, and any other records required by the federal Centers for Medicare and Medicaid Services.

(g) (1) The Department of Human Services shall promptly seek any necessary federal approvals for the implementation of this section. The Department of Human Services may limit the program to those costs that are allowable expenditures under Title XIX of the federal Social Security Act (42 U.S.C. 1396 et seq.). If federal approval is not obtained for implementation of this section, this section may not be implemented.

(2) The Department of Human Services shall submit claims for federal financial participation for the expenditures for the services that are allowable expenditures under federal law.

(3) The Department of Human Services shall, on an annual basis, submit any necessary materials to the federal government to provide assurances that claims for federal financial participation will include only those expenditures that are allowable under federal law.

(4) Notwithstanding the provisions of subdivision (1) of this subsection, the Department of Human Services shall, prior to seeking federal approval of any supplemental reimbursement pursuant to this section, attempt to maximize the number of qualified group emergency medical transportation service providers eligible to receive the supplemental reimbursement. These emergency medical transportation service providers would include:

(A) Any not-for-profit emergency medical transport providers not owned by the state or a city, a county, or a city and county;

(B) Any voluntary emergency transportation service providers not owned by the state or a city, a county, or a city and county; and

(C) All other emergency medical transportation service providers licensed pursuant to the provisions of §16-4C-1 et seq. of this code.

§9-3-1709.  Long-Term Care Partnership Program.


(a) The bureau shall establish a long-term care partnership program in order to provide for the financing of long-term care through a combination of private insurance and Medicaid in accordance with federal requirements on qualified state long-term care insurance partnerships.

(b) The bureau shall file a state plan amendment, pursuant to Title XIX of the United States Social Security Act and any amendments thereto, to the United States Department of Health and Human Services to establish that the assets an individual owns and may retain under Medicaid and still qualify for benefits under Medicaid at the time the individual applies for benefits is increased dollar-for-dollar for each dollar paid out under the individuals’s long-term care insurance policy if the individual is a beneficiary of a qualified long-term care partnership program policy.

(c) An individual who is a beneficiary of a West Virginia long-term care partnership program and meets eligibility requirements is eligible for assistance under the state’s medical assistance program using the asset disregard as provided under subsection (b).

(d) The bureau shall pursue reciprocal agreements with other states to extend the asset disregard to West Virginia residents who purchased long-term care partnership policies in other states that are compliant with Title VI, Section 6021 of the Federal Deficit Reduction Act of 2005, PL 109-171, and any applicable federal regulations or guidelines.

(e) Upon diminishment of assets below the anticipated remaining benefits under a long-term care partnership program policy, certain assets of an individual, as provided under subsection (b), shall not be considered when determining any of the following:

(1) Medicaid eligibility;

(2) The amount of any Medicaid payment;

(3) Any subsequent recovery by the state of a payment for medical services or long-term care services.

(f) If the long-term care partnership program is discontinued, an individual who purchased a West Virginia long-term care partnership program policy before the date the program was discontinued shall be eligible to receive asset disregard if allowed as provided by Title VI, Section 6021 of the Federal Deficit Reduction Act of 2005, PL 109-171.

ARTICLE 4.  OFFICE OF INSPECTOR GENERAL.

PART ONE. INVESTIGATIONS OF FRAUD AND ABUSE

§9-4-101.  Creation of the Office of Inspector General.


Effective the first day of July, 2019, The Office of Inspector General is created and continued.  The Office of Inspector General shall investigate fraud and abuse in state assistance programs for purposes of bringing criminal actions based upon these investigations.

§9-4-102. Appointment of Inspector General; qualifications; oath; compensation.


(a) There is created the position of Inspector General. The Inspector General shall:

(1) Be appointed by the Governor and subject to the provisions of §29-6-1 et seq. of this code;

(2) Serve on a full-time basis and shall not engage in any other profession or occupation, including the holding of a political office in the state either by election or appointment, while serving as Inspector General; and

(3) Be an attorney licensed to practice in this state pursuant to the provision of §30-2-1 et seq. of this code.

 (b) Before entering upon the discharge of the duties as Inspector General, the Inspector General shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia.

(c) The Inspector General shall receive:

(1) A reasonable and competitive compensation package to be established by the Governor; and

(2) Reimbursement for expenses under the standard state travel regulations.

(d) The Inspector General and all employees of the Office of Inspector General shall be governed by the classified service provisions of §29-6-1 et seq. of this code and rules promulgated pursuant thereto.

§9-4-103. Powers and duties of the Inspector General.


In addition to the powers and duties set forth in any other provision of this code, the Inspector General has the following powers and duties:

(1) To conduct and supervise investigations for the purpose of providing quality control and fraud investigation and management for the programs of the Department of Health and Compliance and the Department of Human Services.

(2) Investigating fraud and intra-agency employee misconduct for the above referenced departments.

(3) Coordination with any other office or entity within the Department of Health and Compliance, the Department of Healthcare Facilities and the Department of Human Services necessary for quality control and investigation and fraud management;

(4) Holding public hearings, as needed and mandated by this code;

(5) Data collection, as needed and mandated by this code;

(6) To develop and maintain a state plan which:

(A) Sets forth needs of the state in providing investigations into fraud, misuse and waste;

(B) Provide procedures and requirements for licensing of healthcare facilities;

(C) Sets forth goals and objectives for meeting those needs; and

(D) Contains plans of operation for achieving the stated goals and objectives, including organizational structure and statement of requirements in personnel funds and authority for achieving the goals and objectives.

(7) To appoint deputies and assistants to supervise the programs of the Office of Inspector General and such other assistants and employees as may be necessary for the efficient operation of the office and all its programs;

(8) To delegate to any of his or her appointees, assistants or employees all powers and duties vested in the Inspector General.  The Inspector General shall be responsible for the acts of such appointees, assistants and employees;

(9) To refer criminal matters to the various county prosecuting attorneys and/or the Attorney General necessary for the filing and prosecution of criminal actions of cases of fraud and abuse relating to medical and public assistance as provided in §9-4-108 of this code; 

(10) Perform all other duties and functions as required by this code and are reasonably necessary or essential to affect the express objectives and purpose of this article; and

(11) To make periodic reports to the Attorney General, Governor and to the Legislature as required by this chapter.

§9-4-104. Organization and employees.


(a) The Inspector General shall organize the work of the office in such offices or other organizational units as he or she may determine to be necessary for effective and efficient operation.

(b) The Inspector General shall employ a sufficient number of employees so as to provide for the effective and efficient operation of the office.

(c) The Inspector General, if he or she deems such action necessary, may hire legal counsel for the office, notwithstanding the provisions of §5-3-2 of this code or any other code provision to the contrary, or may request the Attorney General to appoint counsel who shall perform such duties as may be required by the office. The Attorney General, in pursuance of such request, may select and appoint counsel to serve at the will and pleasure of the Attorney General, and shall be paid out of any funds allocated and appropriated to the office.


§9-4-105. Supervisory responsibilities of the Inspector General.

The Inspector General shall have control and supervision of the office and shall be responsible for the work of each of its organizational units. Each organizational unit shall be headed by an employee of the office appointed by the Inspector General who shall be responsible to the Inspector General for the work of his or her organizational unit.


§9-4-106. General powers and duties of the Office of Inspector General.

In carrying out the policies and procedures for enforcing the provisions of this chapter, the Inspector General shall have the following power and authority:

(1) To establish policies and procedures for governing the administration of the office and the conducting of necessary investigations into fraud, misuse and waste;

(2) To formulate standard fiscal procedures and make recommendations for improvement of the office;

(3) To provide for a procedure for supplies and equipment for the office; and

(4) To perform any other duties assigned by the Governor.


§9-4-107.  Organization of Investigation and Fraud Management Division.

(a) The Inspector General shall organize and operate an Investigation and Fraud Management Division.  If the Inspector General has credible information that indicates a person has engaged in an act or activity related to any program, bureau, benefit or intra-agency employee misconduct of the following departments which is subject to prosecution, it may conduct an investigation to determine if the act has been committed. These departments shall include the Department of Health and Compliance and the Department of Human Services.

(b) To the extent necessary to the investigation, the Inspector General or an employee of the Office of the Inspector General designated by the Inspector General may administer oaths or affirmations and issue subpoenas for witnesses and documents relevant to the investigation, including information concerning the existence, description, nature, custody, condition and location of any book, record, document or other tangible thing and the identity and location of persons having knowledge of relevant facts or any matter reasonably calculated to lead to the discovery of admissible evidence.

(c) When the Investigation and Fraud Management Division has probable cause to believe that a person has engaged in an act or activity which is subject to prosecution relating to bureaus, programs, benefits or intra-agency employee misconduct of the departments listed in subsection (a) of this section, the Inspector General or an employee of the Office of the Inspector General designated by the Inspector General may request search warrants and present and swear or affirm criminal complaints.

(d) If documents necessary to an investigation of the Investigation and Fraud Management Division appear to be located outside the state, the documents shall be made available by the person or entity within the jurisdiction of the state having control over such documents either at a convenient location within the state or, upon payment of necessary expenses to the department for transportation and inspection, at the place outside the state where these documents are maintained.

(e) Upon failure of a person to comply with a subpoena or a subpoena for the production of evidence or failure of a person to give testimony without lawful excuse and upon reasonable notice to all persons affected thereby, the Investigation and Fraud Management Division may apply to the circuit court of the county in which compliance is sought for appropriate orders to compel obedience with the provisions of this section.

(f) The Investigation and Fraud Management Division may not make public the name or identity of a person whose acts or conduct is investigated pursuant to this article or the facts disclosed in an investigation except as the same may be used in any legal action or enforcement proceeding brought pursuant to this code or federal law.

§9-4-108.  Referral for prosecution.


(a) Following an investigation of fraud and abuse among the various entities of state government which provide medical and public assistance and if credible information exists that indicates a person has engaged in an act or activity related to any program, bureau, benefit or intra-agency employee misconduct of the Department of Health and Compliance and the Department of Human Services the Inspector General shall refer matter to the prosecuting attorney of the appropriate county with jurisdiction over the matter.  The referral shall include all evidence and information gathered during the investigation. 

(b) The county prosecuting attorney shall have thirty days from the date of receipt of the referral to notify the Inspector General of whether they intend to prosecute the matter or of their refusal to proceed.  Should the county prosecutor decline to prosecute the matter, the Inspector General may refer the matter to the Attorney General. 

(c) In addition to all other powers and duties granted the Attorney General in §5-3-1 et seq. of this code and elsewhere in this code, the Attorney General is granted concurrent jurisdiction with the county prosecuting attorney to criminally prosecute matters related to fraud and abuse within the medical and public assistance programs operated by the state.  The Attorney General shall only have the power to criminally prosecute any matter referred to that office by the Office of Inspector General.

(d) Upon receipt of a referral from the Office of Inspector General, the Attorney General shall review the matter and determine whether or not to proceed with prosecution.  He or she may request further investigation by the Office of Inspector General should it be determined that additional information is necessary for to proceed.

(e) The Inspector General shall provide all information on any matter referred for prosecution to either the county prosecuting attorney or the Attorney General and shall cooperate fully in the prosecution of all matters based upon a referral from the Office of Inspector General.

(f) All money collected from any settlement or recovery as a result of any prosecution related to a referral from the Office of Inspector General shall be deposited in a special account in the State Treasury to be known as the “Inspector General Recovery Fund”.  Expenditures from the fund shall be for the purposes of funding the Office of Inspector General and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of §12-3-1 et seq. of this code and upon fulfillment of the provisions of §11B-2-1 et seq. of this code: Provided, That for the fiscal year ending June 30, 2019, expenditures are authorized from collection rather than pursuant to appropriation by the Legislature.

(g) Nothing in this section requires a county prosecuting attorney or the Attorney General to prosecute all matters referred to the office by the Office of Inspector General.

PART TWO.  LICENSING OF HEALTH CARE FACILITIES.

§9-4-201. Creation of Office of Health Facility Licensure and Certification.


Effective the July 1, 2019, the Office of Health Facility Licensure and Certification is created within the Office of Inspector General.

§9-4-202. Powers and duties of the Office of Health Facility Licensure and Certification.


(a) The primary function of the Office of Health Facility Licensure and Certification is the investigation, inspection, regulation and licensing, where appropriate, of the following healthcare facilities and entities to ensure compliance with state regulation and licensing rules and federal certification requirements:

(1) Alzheimer’s and Dementia Special Care Units and Programs licensed pursuant to the provisions of §16-5R-1 et seq. of this code;

(2) Assisted living residences licensed pursuant to the provisions of §16-5D-1 et seq. a of this code;

(3) Behavioral health facilities and centers, including but not limited to intermediate care facilities for individuals with intellectual disabilities, licensed pursuant to the provisions of §27-13-1 et seq. and §27-17-1 et seq. of this code;

(4) Birthing centers licensed pursuant to the provisions of §16-2C-1 et seq. of this code:

(5) Chronic pain management clinics licensed pursuant to the provisions of §16-5H-1 et seq. of this code;

(6) Hospice facilities licensed pursuant to the provisions of §16-5I-1 et seq. of this code;

(7) Hospitals and similar facilities licensed pursuant to the provisions of §16-5B-1 et seq. of this code;

(8) Legally unlicensed health care homes regulated pursuant to the provisions of §16-5E-1 et seq. of this code;

(9) Medical adult day care centers regulated pursuant to the provisions of §16-5B-1 et seq. of this code and §16-1-4 of this code;

(10) Medication administration by unlicensed personnel regulated pursuant to the provisions of §16-5O-1 et seq. of this code;

(11) Medication-Assisted treatment facilities licensed pursuant to the provisions of §16-5Y-1 et seq. of this code;

(12) Nurse aide abuse registry regulated pursuant to the provisions of chapter 9 and 16 of this code;

(13) Nursing homes licensed pursuant to the provisions of §16-5C-1 et seq. of this code;

(14) Nonprofit corporations for conservator services licensed pursuant to the provisions of §44A-1-1 et seq. of this code;

(15) Residential care communities licensed pursuant to the provisions of §16-5N-1 et seq. of this code; and

(16) Any other health-related facility which the department is authorized to supervise and for which specific rulemaking authority has not been granted.

(b) Other duties of the Office of Health Facility Licensure and Certification may be assigned by the secretary.


§9-4-203. License from Office of Inspector General; regulations.

(a) No hospital, center or institution, or part of any hospital, center or institution, to provide inpatient, outpatient or other service designed to contribute to the care and treatment of the mentally ill or intellectually disabled, or prevention of such disorders, may be established, maintained or operated by any political subdivision or by any person, persons, association or corporation unless a license therefor is first obtained from the Office of Health Facility Licensure and Certification.

(b) The application for such license shall be accompanied by a plan of the premises to be occupied, and such other data and facts as the Office of Health Facility Licensure and Certification may require. The Office of Health Facility Licensure and Certification may make such terms and regulations in regard to the conduct of any licensed hospital, center or institution, or part of any licensed hospital, center or institution, as he or she thinks proper and necessary.

(c) The Office of Health Facility Licensure and Certification has authority to investigate and inspect any licensed hospital, center or institution, or part of any licensed hospital, center or institution, and the Office of Health Facility Licensure and Certification may revoke the license of any hospital, center or institution, or part of any hospital, center or institution, for good cause after reasonable notice to the Chief Executive Officer or other person in charge of the hospital, center or institution.


PART 3.  BOARD OF REVIEW. 


§9-4-301.  Creation of Board of Review; purpose. 


(a) Effective July 1, 2019, the Board of Review is established and continued within the Office of Inspector General. 

(b) The board is to functions to provide a fair, impartial, and expeditious hearing process to applicants, recipients and providers who feel themselves aggrieved by the actions of the Department of Health and Compliance, the Department of Healthcare Facilities and the Department of Human Services.


§9-4-302.  Organization of the Board of Review.


(a) There is organized within the Office of Inspector General a Board of Review.  The board shall consist of a chairman who shall be appointed by the secretary.  The Inspector General may assign as many assistants or employees as he or she may determine as necessary and as may be required by federal laws and rules respecting state assistance, federal-state assistance and federal assistance. 

(b) The board shall have such powers of a review nature and such additional powers as may be granted to it by the secretary and as may be required by federal laws and rules respecting federal-state assistance and federal assistance. 

§9-4-303. Judicial review of decisions of contested cases.


(a) The Board of Review as provided in this article shall provide a fair, impartial and expeditious grievance and appeal process to applicants or recipients of state assistance, federal assistance or federal-state assistance as defined in this article. The Board of Review shall provide a fair, impartial and expeditious grievance and appeal process to applicants, recipients and providers of services.

(b) Any party adversely affected or aggrieved by a final decision or order of the Board of Review may seek judicial review of that decision.

(c) Proceedings for review shall be instituted by filing a petition, at the election of the petitioner, in either the circuit court of Kanawha County, West Virginia, or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, or with the judge thereof in vacation, within thirty days after the date upon which such party received notice of the final order or decision of the board. A copy of the petition shall be served upon the appropriate department and all other parties of record by registered or certified mail. The petition shall state whether the appeal is taken on questions of law or questions of fact, not both. No appeal bond is required to effect any such appeal.

(d) The filing of the petition for appeal does not stay or supersede enforcement of the final decision or order of the Board of Review or the appropriate department. The appropriate department may voluntarily stay such enforcement and the appellant, at any time after the filing of the petition for appeal, may apply to the circuit court of Kanawha County, or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, for a stay of or to supersede the final decision or order. Pending the appeal, the circuit court may grant a stay or supersede the order upon such terms as it considers proper.

(e) Within fifteen days after receipt of a copy of the petition by the Board of Review of the appropriate department, or within such further time as the court may allow, the Board of Review shall prepare and transmit to the circuit court of Kanawha County, or in the circuit court of the county in which the petitioner or any one of the petitioners resides or does business, the original or a certified copy of the entire record of the proceeding under review.  All records prepared and transmitted that involve a minor shall be filed under seal. This shall include a transcript of all reported testimony and all exhibits, papers, motions, documents, evidence, records, agency staff memoranda and data used in consideration of the case, all briefs, memoranda, papers and records considered by the department in the underlying proceeding and a statement of matters officially noted. By stipulation of the parties, the record may be shortened. In the event the complete record is not filed with the court within the time provided for in this section, the appellant may apply to the court to have the case docketed and the court shall order the Board of Review of the appropriate department to file the record.

(f) The cost of preparing the official record shall be assessed as part of the costs of the appeal. The appellant shall provide security for costs satisfactory to the court. Any party unreasonably refusing to stipulate to limit the record may be assessed by the court for the additional costs involved. Upon demand by any party to the appeal, the appropriate department shall furnish, at cost to the requesting party, a copy of the official record.

(g) The court shall hear appeals upon assignments of error filed in the petition or set out in the briefs filed by the parties. The court, it its discretion, may disregard errors not argued by brief or may consider errors that are not assigned or argued. The court shall fix a date and time for the hearing on the petition. Unless otherwise agreed by the parties, the court shall not schedule the hearing sooner than ten days after the filing of the petition for appeal. The petitioner shall provide notice of the date and time of the hearing to the Board of Review and the appropriate department.

(h) In cases involving alleged irregularities in procedure before the Board of Review that are not shown in the record, the court may take additional testimony. Otherwise, the circuit court shall review the appeal without a jury and may only consider the official record provided pursuant to the requirements of this section. The court may hear oral arguments and require written briefs.

(i) The court may affirm the final decision or order of the Board of Review or remand the matter for further proceedings. The court may reverse, vacate or modify the final decision or order of the Board of Review of the appropriate department only if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, decision or order are:

(1) In violation of constitutional or statutory provisions;

(2) In excess of the statutory authority or jurisdiction of the departments set forth in §9-4-301of this code;

(3) Made upon unlawful procedures;

(4) Affected by other error of law;

(5) Clearly wrong in view of the reliable, probative and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion.

(j) The judgment of the circuit court is final unless reversed, vacated or modified on appeal to the West Virginia Supreme Court of Appeals.

(k) The process established by this section is the exclusive remedy for judicial review of final decisions of the Board of Review and the various departments and bureaus set forth in this chapter.

CHAPTER 15. PUBLIC SAFETY.


ARTICLE 12. SEX OFFENDER REGISTRATION ACT.


§15-12-2a. Court determination of sexually violent predator.

(a) The circuit court that has sentenced a person for the commission of a sexually violent offense or that has entered a judgment of acquittal of a charge of committing a sexually violent offense in which the defendant has been found not guilty by reason of mental illness, mental retardation or addiction shall make a determination whether:

(1) A person is a sexually violent predator; or

(2) A person is not a sexually violent predator.

(b) A hearing to make a determination as provided in subsection (a) of this section is a summary proceeding, triable before the court without a jury.

(c) A proceeding seeking to establish that a person is a sexually violent predator is initiated by the filing of a written pleading by the prosecuting attorney. The pleading shall describe the record of the judgment of the court on the person's conviction or finding of not guilty by reason of mental illness, mental retardation or addiction of a sexually violent offense and shall set forth a short and plain statement of the prosecutor's claim that the person suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

(d) Prior to making a determination pursuant to the provisions of this section, the sentencing court may order a psychiatric or other clinical examination and, after examination, may further order a period of observation in an appropriate facility within this state designated by the court after consultation with the Director of the Division of Health Secretary of the Department of Human Services.

(e) Prior to making a determination pursuant to the provisions of this section, the sentencing court shall request and receive a report by the board established pursuant to §15-12-2b of this code. The report shall set forth the findings and recommendation of the board on the issue of whether the person is a sexually violent predator.

(f) At a hearing to determine whether a person is a sexually violent predator, the person shall be present and shall have the right to be represented by counsel, introduce evidence and cross-examine witnesses. The offender shall have access to a summary of the medical evidence to be presented by the state. The offender shall have the right to an examination by an independent expert of his or her choice and testimony from the expert as a medical witness on his or her behalf. At the termination of the hearing the court shall make a finding of fact upon a preponderance of the evidence as to whether the person is a sexually violent predator.

(g) If a person is determined by the circuit court to be a sexually violent predator, the clerk of the court shall forward a copy of the order to the State Police in the manner promulgated in accordance with the provisions of §29A-3-1 et seq. of this code.


§15-12-2b. Creation of sex offender registration advisory board.

(a) There is hereby created within the Department of Military Affairs and Public Safety a sex offender registration advisory board consisting of a minimum of five members appointed by the secretary of the Department of Military Affairs and Public Safety. At least two of the members shall be experts in the field of the behavior and treatment of sexual offenders, and each shall be a physician, psychologist or social worker in the employ of this state appointed by the secretary in consultation with the Director of the Division of Health Secretary of the Department of Human Services. The remaining members shall be victims rights advocates and representatives of law-enforcement agencies. Members of the board shall be reimbursed their reasonable expenses pursuant to the rules promulgated by the Department of Administration for the reimbursement of expenses of state officials and employees and shall receive no other compensation for their services. The board shall utilize the staff of the division or office within the Department of Military Affairs and Public Safety designated by the secretary thereof in carrying out its duties and responsibilities as set forth in this article.

(b) The board shall assist the circuit courts of this state in determining whether persons convicted of sexually violent offenses are sexually violent predators.


CHAPTER 16. PUBLIC HEALTH.


ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.


§16-1-2. Definitions.

As used in this article:

(1) "Basic public health services" means those services that are necessary to protect the health of the public. The three areas of basic public health services are communicable and reportable disease prevention and control, community health promotion and environmental health protection;

(2) "Bureau" means the Bureau for Public Health in the department;

(3) "Combined local board of health" means one form of organization for a local board of health and means a board of health serving any two or more counties or any county or counties and one or more municipalities within or partially within the county or counties;

(4) "Commissioner" means the Commissioner of the Bureau who is the state health officer for Public Health;

(5) "County board of health" means one form of organization for a local board of health and means a local board of health serving a single county;

(6) "Department" means the West Virginia Department of Health and Human Resources \ and Compliance;

(7) "Director" or "director of health" means the state health officer commissioner. Administratively within the department, the bureau through its commissioner carries out the public health functions of the department, unless otherwise assigned by the secretary;

(8) "Essential public health services" means the core public health activities necessary to promote health and prevent disease, injury and disability for the citizens of the state. The services include:

(A) Monitoring health status to identify community health problems;

(B) Diagnosing and investigating health problems and health hazards in the community;

(C) Informing, educating and empowering people about health issues;

(D) Mobilizing community partnerships to identify and solve health problems;

(E) Developing policies and plans that support individual and community health efforts;

(F) Enforcing laws and rules that protect health and ensure safety;

(G) Uniting people with needed personal health services and assuring the provision of health care when it is otherwise not available;

(H) Promoting a competent public health and personal health care workforce;

(I) Evaluating the effectiveness, accessibility and quality of personal and population-based health services; and

(J) Researching for new insights and innovative solutions to health problems;

(9) "Licensing boards" means those boards charged with regulating an occupation, business or profession and on which the commissioner serves as a member;

(10) "Local board of health", "local board" or "board" means a board of health serving one or more counties or one or more municipalities or a combination thereof;

(11) "Local health department" means the staff of the local board of health;

(12) "Local health officer" means the physician with a current West Virginia license to practice medicine who supervises and directs the activities, services, staff and facilities of the local health department and is appointed by the local board of health with approval by the commissioner;

(13) "Municipal board of health" means one form of organization for a local board of health and means a board of health serving a single municipality;

(14) "Performance-based standards" means generally accepted, objective standards such as rules or guidelines against which public health performance can be measured;

(15) "Potential source of significant contamination" means a facility or activity that stores, uses or produces substances or compounds with potential for significant contaminating impact if released into the source water of a public water supply;

(16) "Program plan" or "plan of operation" means the annual plan for each local board of health that must be submitted to the commissioner for approval;

(17) "Public groundwater supply source" means a primary source of water supply for a public water system which is directly drawn from a well, underground stream, underground reservoir, underground mine or other primary source of water supplies which is found underneath the surface of the state;

(18) "Public surface water supply source" means a primary source of water supply for a public water system which is directly drawn from rivers, streams, lakes, ponds, impoundments or other primary sources of water supplies which are found on the surface of the state;

(19) "Public surface water influenced groundwater supply source" means a source of water supply for a public water system which is directly drawn from an underground well, underground river or stream, underground reservoir or underground mine, and the quantity and quality of the water in that underground supply source is heavily influenced, directly or indirectly, by the quantity and quality of surface water in the immediate area;

(20) "Public water system" means:

(A) Any water supply or system which regularly supplies or offers to supply water for human consumption through pipes or other constructed conveyances, if serving at least an average of twenty-five individuals per day for at least sixty days per year, or which has at least fifteen service connections, and shall include:

(i) Any collection, treatment, storage and distribution facilities under the control of the owner or operator of the system and used primarily in connection with the system; and

(ii) Any collection or pretreatment storage facilities not under such control which are used primarily in connection with the system;

(B) A public water system does not include a system which meets all of the following conditions:

(i) Consists only of distribution and storage facilities and does not have any collection and treatment facilities;

(ii) Obtains all of its water from, but is not owned or operated by, a public water system which otherwise meets the definition;

(iii) Does not sell water to any person; and

(iv) Is not a carrier conveying passengers in interstate commerce;

(21) "Public water utility" means a public water system which is regulated by the West Virginia Public Service Commission pursuant to the provisions of chapter twenty-four of this code;

(22) "Secretary" means the secretary of the department.

(23) "Service area" means the territorial jurisdiction of a local board of health;

(24) "State Advisory Council on Public Health" means the advisory body charged by this article with providing advice to the commissioner with respect to the provision of adequate public health services for all areas in the state;

(25) "State Board of Health" means the secretary, notwithstanding any other provision of this code to the contrary, whenever and wherever in this code there is a reference to the State Board of Health;

(26) "Zone of critical concern" for a public surface water supply is a corridor along streams within a watershed that warrant more detailed scrutiny due to its proximity to the surface water intake and the intake's susceptibility to potential contaminants within that corridor. The zone of critical concern is determined using a mathematical model that accounts for stream flows, gradient and area topography. The length of the zone of critical concern is based on a five-hour time-of-travel of water in the streams to the water intake, plus an additional one-fourth mile below the water intake. The width of the zone of critical concern is one thousand feet measured horizontally from each bank of the principal stream and five hundred feet measured horizontally from each bank of the tributaries draining into the principal stream.


§16-1-3. Powers and duties of the secretary.

(a) The secretary may establish a state public health system.

(b) All powers and duties of the director of health previously established by former section ten of this article that are not specifically included in this chapter as powers and duties of the commissioner are powers and duties of the secretary.

(c) As necessary for the effective, efficient and economical operation of the system, the secretary may from time to time delegate, assign, transfer or combine responsibilities or duties to or among employees of the department.

(d) Within the limits of applicable federal law, the secretary may require every applicant for a license, permit, certificate of registration, or registration under this chapter to place his or her social security number on the application.

(a) The secretary may establish a state public health system.

(b) The secretary may delegate, assign, transfer or combine responsibilities assigned to the secretary by this chapter to or among employees of the department as necessary for the operation of the public health system.

(c) The secretary may require every applicant for a license, permit, certificate of registration, or registration under this chapter to place his or her social security number on the application, within the limits of applicable federal law.

(d) The secretary may propose rules in accordance with the provisions of §29A-3-1 et seq. of this code that are necessary and proper to effectuate the purposes of this chapter.


§16-1-3a.  Transfer of functions to secretary.

In addition to other duties assigned to the secretary in this article, effective July 1, 2019, the following functions as set out in the respective sections of the code shall become functions of the secretary.  Any reference in these sections to the Secretary of the Department of Health and Human Resources or the Director of Health means the Secretary of the Department of Health and Compliance:

(1) Local boards of health as set forth in §16-2-1 et seq. of this code;

(2) Family planning and child spacing as set forth in §16-2B-1 et seq. of this code;

(3) Home health services as set forth in §16-2C-1 et seq. of this code;

(4) Parental notification of abortion as set forth in §16-2F-1 et seq. of this code;

(5) Primary care support program as set forth in §16-2H-1 et seq. of this code;

(6) Women’s right to know as set forth in §16-2I-1 et seq. of this code;

(7) Pain-capable unborn child protection set forth in §16-2M-1 et seq. of this code;

(8) Prevention and control of communicable and other infectious diseases as set forth in §16-3-1 et seq. of this code;

(9) Repository of information on medical treatment for certain hazardous materials as set forth in §16-3A-1 et seq. of this code;

(10) Pertussis as set forth in §16-3B-1 et seq. of this code;

(11) AIDS-related medical testing and records confidentiality as set forth in §16-3C-1 et seq. of this code;

(12) Tuberculous testing, control, treatment and commitment as set forth in §16-3D-1 et seq. of this code;

(13) Sexually transmitted diseases as set forth in §16-4-1 et seq. of this code:

(14) Autopsies on bodies of deceased persons as set forth in §16-4B-1 et seq. of this code;

(15) Expedited partner therapy as set forth in §16-4F-1 et seq. of this code;

(16) Vital statistics as set forth in §16-5-1 et seq. of this code;

(17) Cancer control as set forth in §16-5A-1 et seq. of this code;

(18) Osteoporosis prevention education as set forth in §16-5M-1 et seq. of this code;

(19) Medication administration by unlicensed personnel as set forth in §16-5O-1 et seq. of this code;

(20) Alzheimer’s special care standards as set forth in §16-5R-1 et seq. of this code;

(21) Arthritis prevention education as set forth in §16-5U-1 et seq. of this code;

(22) Hotels and restaurants as set forth in §16-6-1 et seq. of this code;

(23) Pure food and drugs as set forth in §16-7-1 et seq. of this code;

(24) Offenses generally as set forth in §16-9-1 et seq. of this code;

(25) Tobacco usage restrictions as set forth in §16-9A-1 et seq. of this code;

(26) Sanitary districts for sewage disposal as set forth in §16-12-1 et seq. of this code;

(27) Drinking water treatment revolving fund as set forth in §16-13C-1 et seq. of this code;

(28) Storage and disposal of radioactive waste materials as set forth in §16-27-1 et seq. of this code;

(29) State health care as set forth in §16-9D-1 et seq. of this code;

(30) West Virginia health care decisions as set forth in §16-30-1 et seq. of this code;

(31) Asbestos abatement as set forth in §16-32-1 et seq. of this code;

(32) Breast and cervical cancer prevention and control as set forth in §16-33-1 et seq. of this code;

(33) Lead abatement as set forth in §16-35-1 et seq. of this code;

(34) Needlestick injury prevention as set forth in §16-36-1 et seq. of this code;

(35) Patient safety as set forth in §16-39-1 et seq. of this code;

(36) Oral health improvement act as set forth in §16-41-1 et seq. of this code;

(37) Access to opioid antagonists as set forth in §16-46-1 et seq. of this code; and

(38) Epinephrine auto-injector availability and use as set forth in §16-50-1 et seq. of this code. 


§16-1-5. State health officer; appointment; qualifications; term.

[Repealed]

§16-1-5a. Creation of the Bureau for Public Health.


Effective the first day of July, 2019, the Bureau for Public Health is created and continued within the Department of Health and Compliance.

§16-1-5b. Commissioner; appointment; qualifications.


(a) There is created the position of commissioner. The commissioner shall:

(1) Be appointed by the Governor with advice and consent of the Senate;

(2) Report directly to the secretary;

(3) Serve at the will and pleasure of the Governor;

(4) Be a physician licensed pursuant to the laws of this state or hold a doctorate degree in public health administration;

(5) Serve on a full-time basis with the duties and responsibilities as set forth in this chapter and shall not engage in any other profession or occupation, including the holding of a political office in the state either by election or appointment, while serving as commissioner; and

(6) Not be actively engaged or employed in any other business, vocation or employment:

(b) Before entering upon the discharge of the duties as commissioner, the commissioner shall take and subscribe to the oath of office prescribed in section five, article IV of the Constitution of West Virginia.

(c) The commissioner shall receive:

(1) A reasonable and competitive compensation package to be established by the Governor; and

(2) Reimbursement for expenses under the standard state travel regulations.

§16-1-6. Powers and duties of the commissioner.

The commissioner is the chief executive, administrative and fiscal officer of the Bureau for Public Health and has the following powers and duties:

(a) To supervise and direct the fiscal and administrative matters of the bureau, and in that regard and in accordance with law, employ, fix the compensation of and discharge all persons necessary for the proper execution of the public health laws of this state and the efficient and proper discharge of the duties imposed upon, and execution of powers vested in the commissioner by law and as directed by the secretary;

(b) To enforce all laws of this state concerning public health; to that end, the commissioner shall make, or cause to be made, investigations and inquiries respecting the cause of disease, especially of epidemics and endemic conditions, and the means of prevention, suppression or control of those conditions; the source of sickness and mortality, and the effects of environment, employment, habits and circumstances of life on the public health.

The commissioner shall further make, or cause to be made, inspections and examinations of food, drink and drugs offered for sale or public consumption in the manner the commissioner considers necessary to protect the public health and shall report all violations of laws and rules relating to the law to the prosecuting attorney of the county in which the violations occur;

(c) To make complaint or cause proceedings to be instituted against any person, corporation or other entity for the violation of any public health law before any court or agency, without being required to give security for costs; the action may be taken without the sanction of the prosecuting attorney of the county in which the proceedings are instituted or to which the proceedings relate;

(d) To promote the provision of essential public health services to citizens of this state;

(e) To monitor the administration, operation and coordination of the local boards of health and local health officers;

(f) To develop and maintain a state plan of operation that sets forth the needs of the state in the areas of public health; goals and objectives for meeting those needs; methods for achieving the stated goals and objectives; and needed personnel, funds and authority for achieving the goals and objectives;

(g) To collect data as may be required to foster knowledge on the citizenry's health status, the health system and costs of health care;

(h) To delegate to any appointee, assistant or employee any and all powers and duties vested in the commissioner, including, but not limited to, the power to execute contracts and agreements in the name of the bureau: Provided, That the commissioner is responsible for the acts of his or her appointees, assistants and employees;

(i) To transfer at the direction of the secretary, notwithstanding other provisions of this code, any patient or resident between hospitals and facilities under the control of the commissioner and, by agreement with the state Commissioner of Corrections and otherwise in accord with law, accept a transfer of a resident of a facility under the jurisdiction of the state Commissioner of Corrections;

(j) To make periodic reports to the Governor and to the Legislature relative to specific subject areas of public health, the state facilities under the supervision of the commissioner, or other matters affecting the public health of the people of the state, at the direction of the secretary;

(k) At the direction of the secretary, to accept and use for the benefit of the health of the people of this state, any gift or devise of any property or thing which is lawfully given: Provided, That if any gift is for a specific purpose or for a particular state hospital or facility it shall be used as specified. Any profit which may arise from any gift or devise of any property or thing shall be deposited in a special revenue fund with the state Treasurer and shall be used only as specified by the donor or donors;

(l) To acquire by condemnation or otherwise any interest, right, privilege, land or improvement and hold title to the land or improvement, for the use or benefit of the state or a state hospital or facility, and, by and with the consent of the Governor, and at the direction of the secretary, to sell, exchange or otherwise convey any interest, right, privilege, land or improvement acquired or held by the state, state hospital or state facility and deposit the proceeds from the sale, exchange or other conveyance into the hospital services revenue account. Any condemnation proceedings shall be conducted pursuant to chapter fifty-four of this code;

(m) To inspect and enforce rules to control the sanitary conditions of and license all institutions and health care facilities as set forth in this chapter, including, but not limited to, schools, whether public or private, public conveyances, dairies, slaughterhouses, workshops, factories, labor camps, places of entertainment, hotels, motels, tourist camps, all other places open to the general public and inviting public patronage or public assembly, or tendering to the public any item for human consumption and places where trades or industries are conducted;

(n) To make inspections, conduct hearings, and to enforce the legislative rules concerning occupational and industrial health hazards, the sanitary condition of streams, sources of water supply, sewerage facilities, and plumbing systems, and the qualifications of personnel connected with the supplies, facilities or systems without regard to whether they are publicly or privately owned; and to make inspections, conduct hearings and enforce the legislative rules concerning the design of chlorination and filtration facilities and swimming pools;

(o) To provide in accordance with this subdivision and the definitions and other provisions of article one-a, chapter twenty-seven of this code, and as directed by the secretary, for a comprehensive program for the care, treatment and rehabilitation of alcoholics and drug abusers; for research into the cause and prevention of alcoholism and drug abuse; for the training and employment of personnel to provide the requisite rehabilitation of alcoholics and drug abusers; and for the education of the public concerning alcoholism and drug abuse;

(p) To provide in accordance with this subdivision for a program for the care, treatment and rehabilitation of the parents of sudden infant death syndrome victims; for the training and employment of personnel to provide the requisite rehabilitation of parents of sudden infant death syndrome victims; for the education of the public concerning sudden infant death syndrome; for the responsibility of reporting to the Legislature on a quarterly basis the incidence of sudden infant death syndrome cases occurring in West Virginia; for the education of police, employees and volunteers of all emergency services concerning sudden infant death syndrome; for the state sudden infant death syndrome advisory council to develop regional family support groups to provide peer support to families of sudden infant death syndrome victims; and for requesting appropriation of funds in both federal and state budgets to fund the sudden infant death syndrome program;

(q) To establish and maintain a state hygienic laboratory as an aid in performing the duties imposed upon the commissioner, and to employ chemists, bacteriologists, and other employees that may be necessary to properly operate the laboratory. The commissioner may establish branches of the state laboratory at any points within the state that are necessary in the interest of the public health;

(r) To establish and fund a uniform health professionals data system to collect and maintain uniform data on all health professionals in the state. This data shall include, but not be limited to, the following information about each health professional: His or her name, profession, the area of the state where he or she is practicing, his or her educational background, his or her employer's name, and number of years practicing within the profession. The boards provided for in articles three, four, four-a, five, seven, seven-a, fourteen, fourteen-a, fifteen, sixteen, twenty, twenty-one, twenty-three, twenty-eight, thirty-one, thirty-two, thirty-four, thirty-five, thirty-six and thirty-seven, chapter thirty of this code shall annually collect the data on health professionals under their jurisdiction in the format prescribed by the commissioner. Each board shall pay to the bureau annually, an amount determined by the commissioner to be a pro rata portion, for anticipated expenses to establish and operate the uniform health professionals data system required by this section. The commissioner may standardize data collection methods if necessary to implement the provisions of this section. The commissioner shall publish annually and make available, upon request, a report setting forth the data which was collected the previous year; areas of the state which the collected data indicates have a shortage of health professionals; and projections, based upon the collected data, as to the need for more health professionals in certain areas;

(s) To expend, for the purpose of performing the public health duties imposed on the bureau, or authorized by law, any sums appropriated by the Legislature. The commissioner may make advance payments to public and nonprofit health services providers when the commissioner determines it is necessary for the initiation or continuation of public health services. The advance payments, being in derogation of the principle of payment only after receipt of goods or services, shall be authorized only after serious consideration by the commissioner of the necessity of the advance payments and shall be for a period no greater than ninety days in advance of rendition of service or receipt of goods and continuation of health services; and

(t) To exercise all other powers delegated to the commissioner by the secretary or by this chapter or otherwise in this code, to enforce all health laws, and to pursue all other activities necessary and incident to the authority and area of concern entrusted to the bureau or the commissioner.

(a) The commissioner is the chief executive, administrative and fiscal officer of the Bureau for Public Health, the commissioner shall:

(1) Efficiently and properly execute and discharge the powers and duties imposed upon and vested in him or her by law and as directed by the secretary;

(2) Supervise and direct the fiscal and administrative matters of the bureau; 

(3) Employ, fix the compensation of and discharge all persons necessary for the proper execution of the public health laws of this state.  This shall include the power to:

(A) Appoint deputies and assistants to supervise the bureau’s programs and such other assistants and employees as may be necessary for the efficient operation of the bureau and all its programs.

(B) Delegate to any of his or her appointees, assistants or employees all powers and duties vested in the commissioner, including the power to execute contracts and agreements in the name of the bureau as provided in this article.  The commissioner shall be responsible for the acts of such appointees, assistants and employees.

(4) Enforce all laws of this state concerning public health;

(5) Make, or cause to be made, investigations and inquiries respecting the cause of disease, especially of epidemics and endemic conditions, and the means of prevention, suppression or control of those conditions; the source of sickness and mortality, and the effects of environment, employment, habits and circumstances of life on the public health;

(6) Inspect and examine food, drink and drugs offered for sale or public consumption in the manner he or she considers necessary to protect the public health and shall report all violations of laws and rules relating to the law to the prosecuting attorney of the county in which a violation occurs;

(7) File a complaint or cause proceedings to be instituted against any person, corporation or other entity for the violation of any public health law before any court or agency, without being required to give security for costs.  These actions may be taken without the sanction of the prosecuting attorney of the county in which the proceedings are instituted or to which the proceedings relate;

(8) Promote the provision of essential public health services to citizens of this state;

(9) Monitor the administration, operation and coordination of the local boards of health and local health officers;

(10) Develop and maintain a state plan of operation that sets forth the needs of the state in the areas of public health; goals and objectives for meeting those needs; methods for achieving the stated goals and objectives; and needed personnel, funds and authority for achieving the goals and objectives;

(11) Collect data as may be required to foster knowledge on the  health status of the citizens of West Virginia, the health system and costs of health care in this state;

(12) Delegate to any appointee, assistant or employee any and all powers and duties vested in the commissioner, including, but not limited to, the power to execute contracts and agreements in the name of the bureau.  The commissioner is responsible for the acts of his or her appointees, assistants and employees;

(13) Notwithstanding any provision of this code to the contrary, transfer any patient or resident between hospitals and facilities under the control of the commissioner and by agreement with the state Commissioner of Corrections and, in accordance with law, accept a transfer of a resident of a facility under the jurisdiction of the state Commissioner of Corrections.

(14) Make periodic reports to the Governor and to the Legislature relative to specific subject areas of public health, the state facilities under the supervision of the commissioner, or other matters affecting the public health of the people of the state;

(15) Accept and use for the benefit of the health of the people of this state, any gift or devise of any property or thing which is lawfully given.  If any gift is for a specific purpose or for a particular state hospital or facility, it shall be used as specified. Any profit which may arise from any gift or devise of any property or thing shall be deposited in a special revenue fund with the state Treasurer and shall be used only as specified by the donor or donors;

(16) Inspect, license and enforce rules to control the sanitary conditions of all institutions and health care facilities as set forth in this chapter.  This shall include, but is not limited to, schools, whether public or private, public conveyances, dairies, slaughterhouses, workshops, factories, labor camps, places of entertainment, hotels, motels, tourist camps, all other places open to the general public and inviting public patronage or public assembly, or tendering to the public any item for human consumption and places where trades or industries are conducted;

(17) (A) Make inspections, conduct hearings, and enforce legislative rules concerning occupational and industrial health hazards, the sanitary condition of streams, sources of water supply, sewerage facilities, and plumbing systems;

(B) Establish the qualifications of personnel connected with the supplies, facilities or systems without regard to whether they are publicly or privately owned; and

(C) To make inspections, conduct hearings and enforce legislative rules concerning the design of chlorination and filtration facilities and swimming pools;

(18) Provide in accordance with this chapter and the definitions and other provisions of §27-1A-1 et seq. of this code:

(A) For a comprehensive program for the care, treatment and rehabilitation of alcoholics and drug abusers;

(B) For research into the cause and prevention of alcoholism and drug abuse;

(C) For the training and employment of personnel to provide the requisite rehabilitation of alcoholics and drug abusers; and

(D) For the education of the public concerning alcoholism and drug abuse;

(19) Provide in accordance with this chapter:

(A) For a program for the care, treatment and rehabilitation of the parents of sudden infant death syndrome victims;

(B) For the training and employment of personnel to provide the requisite rehabilitation of parents of sudden infant death syndrome victims;

(C) For the education of the public concerning sudden infant death syndrome;

(D) For the responsibility of reporting to the Legislative Oversight Commission on Health and Human Resource Accountability on a quarterly basis the incidence of sudden infant death syndrome cases occurring in West Virginia;

(E) For the education of police, employees and volunteers of all emergency services concerning sudden infant death syndrome;

(F) For the state sudden infant death syndrome advisory council to develop regional family support groups to provide peer support to families of sudden infant death syndrome victims; and

(G) For requesting appropriation of funds in both federal and state budgets to fund the sudden infant death syndrome program;

(20) Establish and maintain a state hygienic laboratory as an aid in performing the duties of the commissioner, and to employ chemists, bacteriologists, and other employees that may be necessary to properly operate the laboratory. The commissioner may establish branches of the state laboratory at any points within the state that are necessary in the interest of the public health;

(21) (A) Establish and fund a uniform health professionals data system to collect and maintain uniform data on all health professionals in this state. This data shall include, but not be limited to, the following information about each health professional:

(i) His or her name;

(ii) Profession; 

(iii) The area of the state where he or she is practicing;

(iv) His or her educational background;

(v) His or her employer's name; and

(vi) The number of years practicing within the profession.

(B) The boards provided for in §30-3-1 et seq., §30-4-1 et seq., §30-4A-1 et seq., §30-5-1 et seq., §30-7-1 et seq., §30-7A-1 et seq., §30-14-1 et seq., §30-14A-1 et seq., §30-15-1 et seq., §30-16-1 et seq., §30-20-1 et seq., §30-21-1 et seq., §30-23-1 et seq., §30-28-1 et seq., §30-31-1 et seq., §30-32-1 et seq., §30-34-1 et seq., §30-35-1 et seq., §30-36-1 et seq. and  §30-37-1 et seq. of this code shall annually collect the data on health professionals under their jurisdiction in the format prescribed by the commissioner.

(C) Each board shall pay to the bureau annually, an amount determined by the commissioner to be a pro rata portion, for anticipated expenses to establish and operate the uniform health professionals data system required by this article.

(D) The commissioner may standardize data collection methods if necessary to implement the provisions of this section.

(E) The commissioner shall publish annually and make available upon request, a report setting forth the data which was collected the previous year; areas of the state which the collected data indicates have a shortage of health professionals; and projections, based upon the collected data, as to the need for more health professionals in certain areas;

(24) (A) Expend any sums appropriated by the Legislature for the purpose of performing the public health duties imposed on the bureau, or authorized by law. 

(B) The commissioner may make advance payments to public and nonprofit health services providers when the commissioner determines it is necessary for the initiation or continuation of public health services.

(C) The advance payments, being in derogation of the principle of payment only after receipt of goods or services, shall be authorized only after serious consideration by the commissioner of the necessity of the advance payments.

(D) Shall be for a period no greater than ninety days in advance of rendition of service or receipt of goods and continuation of health services;

(25) To make periodic reports to the secretary, Governor and to the Legislature as required by this chapter; and

(26) Exercise all other powers delegated to the commissioner by the secretary or by this chapter or otherwise in this code to enforce all health laws, and to pursue all other activities necessary and incident to the authority and area of concern entrusted to the bureau or the commissioner.

(b) The commissioner is authorized and empowered to accept and use for the benefit of the bureau any gift or devise of any property or thing which lawfully may be given.  Any gift or devise of any property or thing which lawfully may be given and whatever profit may arise from its use or investment shall be deposited in a special revenue fund with the State Treasurer, and shall be used only as specified by the donor or donors.

§16-1-6a. Organization and employees.


(a) The commissioner shall organize the work of the bureau in such offices or other organizational units as he or she may determine to be necessary for effective and efficient operation.

(b) The commissioner shall employ a sufficient number of employees so as to provide for the effective and efficient operation of the bureau.

(c) The secretary may transfer employees and resources of the department to the bureau as may be necessary to fulfill the duties and responsibilities of the bureau pursuant to this chapter.  The secretary may not transfer employees of other divisions and agencies within the department to the bureau without a prior finding that the office or position held by the employee may be eliminated and until the office or position is, in fact, eliminated.

(d) The commissioner, if he or she deems such action necessary, may hire legal counsel for the bureau, notwithstanding the provisions of §5-3-2 of this code or any other code provision to the contrary, or may request the Attorney General to appoint counsel who shall perform such duties as may be required by the bureau. The Attorney General, in pursuance of such request, may select and appoint counsel to serve during the will and pleasure of the Attorney General, and shall be paid out of any funds allocated and appropriated to the bureau.

(e) The commissioner may employ such staff or employees as may be necessary to administer and enforce this chapter.

§16-1-6b. Supervisory responsibilities of the commissioner.


The commissioner shall have control and supervision of the bureau and shall be responsible for the work of each of its organizational units. Each organizational unit shall be headed by an employee of the bureau appointed by the commissioner who shall be responsible to the commissioner for the work of his or her organizational unit.

§16-1-6c. General powers and duties of the Bureau for Public Health.

In carrying out the policies and procedures for enforcing the provisions of this chapter, the bureau shall have the following power and authority:

(1) To establish policies and procedures for governing the administration of the bureau.

(2) To formulate standard fiscal procedures and make recommendations for improvement of the bureau;

(3) To provide for a procedure for supplies and equipment for the bureau;

(4) To act as a liaison with other state entities and private groups with an interest in medical assistance; and

(5) To perform any other duties assigned to the bureau by the secretary.


ARTICLE 2. LOCAL BOARDS OF HEALTH.


§16-2-2. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(a) "Basic public health services" means those services that are necessary to protect the health of the public and that a local board of health must provide. The three areas of basic public health services are communicable and reportable disease prevention and control, community health promotion, and environmental health protection;

(b) "Bureau" means the Bureau for Public Health in the Department of Health and Human Resources Compliance;

(c) "Clinical and categorical programs" means those services provided to individuals of specified populations and usually focus on health promotion or disease prevention. These services are not considered comprehensive health care but focus on specific health issues such as breast and cervical cancer, prenatal and pediatric health services and home health services;

(d) "Combined local board of health" is one form of organization for a local board of health and means a board of health serving any two or more counties or any county or counties and one or more municipalities within or partially within the county or counties;

(e) "Commissioner" means the Commissioner of the Bureau for Public Health; who is the state health officer

(f) "Communicable and reportable disease prevention and control" is one of three areas of basic public health services each local board of health must offer. Services shall include disease surveillance, case investigation and follow-up, outbreak investigation, response to epidemics, and prevention and control of rabies, sexually transmitted diseases, vaccine preventable diseases, HIV/AIDS, tuberculosis and other communicable and reportable diseases;

(g) "Community health promotion" is one of three areas of basic public health services each local board of health must offer. Services shall include assessing and reporting community health needs to improve health status, facilitating community partnerships including identifying the community's priority health needs, mobilization of a community around identified priorities, and monitoring the progress of community health education services;

(h) "County board of health" is one form of organization for a local board of health and means a local board of health serving a single county;

(i) "Department" means the West Virginia Department of Health and Human Resources Compliance;

(j) "Director" or "director of health" means the state health officer commissioner. Administratively within the department, the Bureau for Public Health through its commissioner carries out the public health function of the department, unless otherwise assigned by the secretary;

(k) "Environmental health protection" is one of three areas of basic public health services each local board of health must offer. Services shall include efforts to protect the community from environmental health risks including, inspection of housing, institutions, recreational facilities, sewage and wastewater facilities; inspection and sampling of drinking water facilities; and response to disease outbreaks or disasters;

(l) "Enhanced public health services" means services that focus on health promotion activities to address a major health problem in a community, are targeted to a particular population and assist individuals in this population to access the health care system, such as lead and radon abatement for indoor air quality and positive pregnancy tracking. Enhanced public health services are services a local health department may offer;

(m) "Local board of health," "local board" or "board" means a board of health serving one or more counties or one or more municipalities or a combination thereof;

(n) "Local health department" means the staff of the local board of health;

(o) "Local health officer" means the individual physician with a current West Virginia license to practice medicine who supervises and directs the activities of the local health department services, staff and facilities and is appointed by the local board of health with approval by the commissioner;

(p) "Municipal board of health" is one form of organization for a local board of health and means a board of health serving a single municipality;

(q) "Performance-based standards" means generally accepted, objective standards such as rules or guidelines against which a local health department's level of performance can be measured;

(r) "Primary care services" means health care services, including medical care, that emphasize first contact patient care and assume overall and ongoing responsibility for the patient in health maintenance and treatment of disease. Primary care services are services that local boards of health may offer if the board has determined that an unmet need for primary care services exists in its service area. Basic public health services funding may not be used to support these services;

(s) "Program plan" or "plan of operation" means the annual plan for each local board of health that must be submitted to the commissioner for approval;

(t) "Secretary" means the Secretary of the state Department of Health and Human Resources Compliance; and

(u) "Service area" means the territorial jurisdiction of the local board of health.


§16-2-9. Local board of health; terms of appointment; reappointment; oath of office; vacancies; removal; compensation; expenses.

(a) The term of office for members selected and appointed to a local board of health pursuant to the provisions of this article is five years. Members may serve until their duly qualified successors are selected and appointed by vote of the original appointing authority. Members may be reappointed for additional terms of five years. Board members' oaths of office shall be duly recorded before entering into or discharging any duties of the office.

(b) Any vacancy on any local board of health shall be filled by appointment of the original appointing authority. This appointment is for the unexpired term.

(c) A local board of health may remove any of its members pursuant to the provisions of its lawfully adopted bylaws and shall remove any of its members for official misconduct, incompetence, neglect of duty, gross immorality or the revocation of any state professional license or certification. A local board of health, or any of its members may be removed by the state health officer commissioner for failure or refusal to comply with duties as set forth by statute or rule. Upon removal, a successor or successors to the member or members removed shall immediately be appointed by the original appointing body pursuant to the provisions of this article.

(d) Each member of a local board of health may receive compensation as determined by the local board for attending meetings of and other activities for the board as required by law: Provided, That this compensation may not exceed $100 per day. Each member of a local board may be reimbursed for all reasonable and necessary travel and other expenses actually incurred by the member in the performance of duties as a member of the local board.


ARTICLE 2G. SPECIAL SUPPLEMENTARY FOOD PROGRAM FOR WOMEN, INFANTS AND CHILDREN (WIC).


§16-2G-1. Voucher or coupon redemption and payment.


[Repealed]


ARTICLE 3. PREVENTION AND CONTROL OF COMMUNICABLE AND OTHER INFECTIOUS DISEASES.


§16-3-4. Compulsory immunization of school children; information disseminated; offenses; penalties.

(a) Whenever a resident birth occurs, the commissioner shall promptly provide parents of the newborn child with information on immunizations mandated by this state or required for admission to a public, private and parochial school in this state or a state-regulated child care center.

(b) Except as hereinafter provided, a child entering school or a state-regulated child care center in this state must be immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough.

(c) No child or person may be admitted or received in any of the schools of the state or a state-regulated child care center until he or she has been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio,, rubella, tetanus and whooping cough or produces a certificate from the commissioner granting the child or person an exemption from the compulsory immunization requirements of this section.

(d) Any school or state-regulated child care center personnel having information concerning any person who attempts to be enrolled in a school or state-regulated child care center without having been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough shall report the names of all such persons to the commissioner.

(e) Persons may be provisionally enrolled under minimum criteria established by the commissioner so that the person's immunization may be completed while missing a minimum amount of school. No person shall be allowed to enter school without at least one dose of each required vaccine.

(f) County health departments shall furnish the biologicals for this immunization for children of parents or guardians who attest that they cannot afford or otherwise access vaccines elsewhere.

(g) Health officers and physicians who provide vaccinations must present the person vaccinated with a certificate free of charge showing that they have been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough, or he or she may give the certificate to any person or child whom he or she knows to have been immunized against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio, rubella, tetanus and whooping cough.

(h) The commissioner is authorized to grant, renew, condition, deny, suspend or revoke exemptions to the compulsory immunization requirements of this section, on a statewide basis, upon sufficient medical evidence that immunization is contraindicated or there exists a specific precaution to a particular vaccine.

(1) A request for an exemption to the compulsory immunization requirements of this section must be accompanied by the certification of a licensed physician stating that the physical condition of the child is such that immunization is contraindicated or there exists a specific precaution to a particular vaccine.

(2) The commissioner is authorized to appoint and employ an Immunization Officer to make determinations on request for an exemption to the compulsory immunization requirements of this section, on a statewide basis, and delegate to the Immunization Officer the authority granted to the commissioner by this subsection.

(3) A person appointed and employed as the Immunization Officer must be a physician licensed under the laws of this state to practice medicine.

(4) The Immunization Officer's decision on a request for an exemption to the compulsory immunization requirements of this section may be appealed to the State Health Officer commissioner.

(5) The final determination of the State Health Officer commissioner is subject to a right of appeal pursuant to the provisions of §29A-5-1 et seq. of this code.

(i) A physician who provides any person with a false certificate of immunization against chickenpox, hepatitis-b, measles, meningitis, mumps, diphtheria, polio,, rubella, tetanus and whooping cough is guilty of a misdemeanor and, upon conviction, shall be fined not less than $25 nor more than $100.


ARTICLE 3D. TUBERCULOSIS TESTING, CONTROL, TREATMENT AND COMMITMENT.


§16-3D-2. Definitions.

As used in this article:

(1) "Active Tuberculosis" or "Tuberculosis" means a communicable disease caused by the bacteria, Mycobacterium tuberculosis, which is demonstrated by clinical, bacteriological, radiographic or epidemiological evidence. An infected person whose tuberculosis has progressed to active disease may experience symptoms such as coughing, fever, fatigue, loss of appetite and weight loss and is capable of spreading the disease to others if the tuberculosis germs are active in the lungs or throat.

(2) "Bureau" means the Bureau for Public Health in the Department of Health and Human Resources Compliance;

(3) "Commissioner" means the Commissioner of the Bureau for Public Health; who is the state health officer

(4) "Local board of health," "local board" or "board" means a board of health serving one or more counties or one or more municipalities or a combination thereof;

(5) "Local health department" means the staff of the local board of health; and

(6) "Local health officer" means the individual physician with a current West Virginia license to practice medicine who supervises and directs the activities of the local health department services, staff and facilities and is appointed by the local board of health with approval by the commissioner.

(7) "Tuberculosis suspect" means a person who is suspected of having tuberculosis disease due to any or all of the following medical factors: the presence of symptoms, the result of a positive skin test, risk factors for tuberculosis, or findings on an abnormal chest x ray, during the time period when an active tuberculosis disease diagnosis is pending.


ARTICLE 4A. PRENATAL EXAMINATION.


§16-4A-1. Compulsory serologic test.

[Repealed]

§16-4A-2. Attending physician to obtain blood specimen.


[Repealed]

§16-4A-3. Identification of specimen; report.


[Repealed]

§16-4A-4. Notation on birth certificate.


[Repealed]

§16-4A-5. Offenses; penalty.


[Repealed]

§16-4A-6. Separability.


[Repealed]

ARTICLE 4E. UNIFORM MATERNAL SCREENING ACT.


§16-4E-1. Legislative findings.


[Repealed]

§16-4E-2. Establishment of an advisory council on maternal risk assessment.


[Repealed]

§16-4E-3. Responsibilities of the advisory council on maternal risk assessment.


[Repealed]

§16-4E-4. Legislative rule-making authority.


[Repealed]

§16-4E-5. Applicability of the screening tool.


[Repealed]

§16-4E-6. Confidentiality of screening tool.


[Repealed]


ARTICLE 8. ELECTROLOGISTS ELECTIVE BODY MODIFICATION.


§16-8-1. Definitions.

The following words shall have the following meaning:

(1) "Adequate ventilation" means a free and unrestricted circulation of fresh air throughout a body piercing studio or a tattoo studio and the expulsion of foul or stagnant air.

(2) "Antibacterial solution" means any solution used to retard the growth of bacteria approved for application to human skin and includes all products so labeled.

(3) "Antimicrobial solution" means any solution used to retard the growth of microorganisms.

(4) "Body piercing" means to puncture the skin for the purpose of creating a hole to be decorated or adorned, but does not include the use of a mechanized, presterilized ear-piercing system that penetrates the outer perimeter or lobe of the ear or both.

(5) "Body piercing studio" means any room or space where body piercing is practiced or where the business of body piercing or any part thereof is conducted.

(6) "Electrology" means the art and practice relating to the removing of hair from the normal skin of the body by the application of an electric current to the hair papilla by means of a needle or needles, or by the application of an electronic tweezer having the electrical current flow through the hair and the follicle as in conventional electrolysis.

(7) "Electrolysis" means the process by which hair is removed from the normal skin by the application of an electric current to the hair root by means of a needle, needles or electronic tweezer, whether the process employs direct electric current to the hair root or by means of shortwave alternating electric current.

(8) "Germicidal solution" means any solution which destroys germs and is so labeled.

(9) "Minor" means any person under the age of eighteen years.

(10) "Operator" means any person who is registered with the state to operate, control or manage a body piercing studio, and whose studio has been issued an operating permit by the local board of health.

(11) “Photo therapy device” means a device used for exposure to daylight or to specific wavelengths of light using lasers, light emitting diodes, fluorescent lamps, dichroic lamps or very bright, full spectrum light, usually controlled with various devices.

(12) "Single use" means products, instruments or items that are used one time on one client and then properly disposed of in accordance with rules of the department regarding the disposal of medical wastes.

(13) "Standard precautions" means that all blood and body fluids are treated so as to contain all blood-borne pathogens and all proper precautions are taken to prevent the spread of any blood-borne pathogens.

(14) "Sterilization" means holding in an autoclave for twenty-five minutes at fifteen pounds pressure at a temperature of two hundred fifty degrees Fahrenheit or one hundred twenty-one degrees Celsius. This definition does not apply to the sterilization referenced in §16-8-6 (a)(1)(D) of this code.

(15) "Tattoo" means to mark or color the skin by pricking in coloring matter so as to form indelible marks or figures or by the production of scars.

(16) "Tattoo studio" means any room or space where tattooing is practiced or where the business of tattooing or any part thereof is conducted.

(17) "Technician" means an individual who engages in the practice of body piercing.

(18) “Tanning device” means any equipment that emits radiation used for tanning of the skin, such as a sun lamp, tanning booth or tanning bed, and includes any accompanying equipment, such as protective eye wear, timers and handrails.

(19) “Tanning facility” means any commercial location, place, area, structure or business where a tanning device is used for a fee, membership dues or other compensation.

§16-8-2. Body piercing studio business.


(a) Effective with the passage of this article, any body piercing studio in West Virginia shall obtain a West Virginia business registration certificate and shall register with the local or regional board of health, request an inspection of the facility, and obtain an operating permit before engaging in the business of body piercing.

(b) Each local or regional board of health shall conduct annual inspections of body piercing studios to determine compliance with this article.

(c) Upon a determination by the board that the body piercing studio is in compliance with the provisions of this article, the board shall issue to the body piercing studio an operating permit, which shall be posted in a conspicuous place in the body piercing studio, clearly visible to the general public.

(d) Upon a determination by the board that any body piercing studio is not in compliance with the provisions of this article, or the rules promulgated hereunder, the board may order the body piercing studio to cease operations until such time as the board determines that the body piercing studio is in compliance.

(e) Nothing in this article may be construed as prohibiting any health care provider licensed under chapter thirty of this code from performing any action within the scope of his or her practice, or as restricting the lawful practice of medicine or surgery in this state.

§16-8-3. Tattoo studio business.


(a) Studio sanitation.

(1) The tattoo artist's hands shall be washed and then air blown or dried by single-use towel prior to beginning work on each person or when interrupted in the process of working on a person. In addition, disposable latex examination gloves shall be worn by the tattoo artist during the tattooing process. The gloves shall be changed and properly disposed of each time there is an interruption in the application of the tattoo, each time the gloves become torn or punctured or whenever the ability of the gloves to function as a barrier is compromised.

(2) Cabinets for the storage of instruments, dyes, pigments, single-use articles, carbon, stencils and other utensils shall be provided for each tattoo artist and shall be maintained in a sanitary manner.

(3) Bulk single use articles shall be commercially packaged and handled in such a way as to protect them from contamination. Storage of single-use articles may not be in toilet rooms or in vestibules of toilet rooms nor under nonpotable water lines or exposed sewer lines.

(4) Work tables and chairs or benches shall be provided for each tattoo artist. The surface of all work tables and chairs or benches shall be constructed of material which is smooth, light colored, nonabsorbent, corrosive-resistant and easily sanitized. The work tables and chairs or benches shall be sanitized with a germicidal solution after each tattoo application. All existing tattoo studios on the effective date of the administrative regulation shall be exempt from the required color of the work table.

(5) All materials applied to human skin shall be from single-use articles or transferred from bulk containers to single-use containers and shall be disposed of after each use.

(6) No pets, including working dogs, guide dogs or security dogs from a certified trainer, may be permitted in a tattoo studio workroom as defined in §16-8-304(c), of this code.

(b) Operation standards.

(1) Records.

(A) Proper records of tattoos administered shall be maintained for each patron by the holder of the studio registration.

(B) A record shall be prepared for each patron prior to any procedure being performed and shall include the patron's name and signature, address, age, date tattooed, design of the tattoo, location of the tattoo on the patron's body and the name of the tattoo artist who performed the work.

(C) Record entries shall be in ink or indelible pencil and shall be available for examination by the inspecting authorities provided in subsection (e) of this section.

(D) Before tattoo administration, the owner or tattoo artist shall discuss with the patron the risks involved in the tattoo requested, including the potential that a tattoo may interfere with the clinical reading of a magnetic resonance imaging study, should the patron intending to be tattooed ever encounter a medical need for such a study. The owner shall provide the patron with written information regarding the possible complications that may arise from receiving a tattoo. The written information shall be prepared by the department. Receipt of the information shall be acknowledged in writing by the patron. The owner or tattoo artist shall also keep and maintain the acknowledgment as part of the patron’s record pursuant to the provisions of subdivision (E) of this subsection.

(E) All records required by this section shall be kept on file for five years by the holder of the studio registration for the studio in which the tattoo was performed.

(2) Consent.

(A) Prior written consent for tattooing of minors shall be obtained from a parent or guardian.

(B) All written consents shall be kept on file for five years by the holder of the studio registration for the tattoo studio in which the tattoo was performed.

(C) The person receiving the tattoo shall attest to the fact that he or she is not intoxicated or under the influence of drugs or alcohol.

(3) Tattooing procedures.

(A) Printed instructions on the care of the skin after tattooing shall be given to each patron as a precaution to prevent infection.

(B) A copy of the printed instructions shall be posted in a conspicuous place, clearly visible to the person being tattooed.

(C) Each tattoo artist shall wear a clean outer garment, i.e., apron, smock, T shirt, etc.

(D) Tattoo artists who are experiencing diarrhea, vomiting, fever, rash, productive cough, jaundice, draining or open skin infections such as boils which could be indicative of more serious conditions such as, but not limited to, impetigo, scabies, hepatitis b, HIV or AIDS shall refrain from tattooing activities until such time as they are no longer experiencing or exhibiting the aforementioned symptoms.

(E) Before working on each patron, the fingernails and hands of the tattoo artist shall be thoroughly washed and scrubbed with hot running water, antibacterial soap and an individual hand brush that is clean and in good repair.

(F) The tattoo artist's hands shall be air blown dried or dried by a single use towel. In addition, disposable latex examination gloves shall be worn during the tattoo process. The gloves shall be changed each time there is an interruption in the tattoo application, the gloves become torn or punctured or whenever their ability to function as a barrier is compromised.

(G) Only sterilized or single use, disposable razors shall be used to shave the area to be tattooed.

(H) Immediately prior to beginning the tattoo procedure, the affected skin area shall be treated with an antibacterial solution.

(I) If an acetate stencil is used by a tattoo artist for transferring the design to the skin, the acetate stencil shall be thoroughly cleaned and rinsed in a germicidal solution for at least 20 minutes and then dried with sterile gauze or dried in the air on a sanitized surface after each use.

(J) If a paper stencil is used by a tattoo artist for transferring the design to the skin, the paper stencil shall be single use and disposable.

(K) If the design is drawn directly onto the skin, the design shall be applied with a single use article only.

(4) Dyes or pigments.

(A) Only nontoxic sterile dyes or pigments shall be used and shall be prepared in sterilized or disposable single use containers for each patron.

(B) After tattooing, the unused dye or pigment in the single use containers shall be discarded along with the container.

(C) All dyes or pigments used in tattooing shall be from professional suppliers specifically providing dyes or pigments for the tattooing of human skin.

(5) Sterilization of needles.

(A) A set of individual, sterilized needles shall be used for each patron.

(B) No less than twenty-four sets of sterilized needles and tubes shall be on hand for the entire day or night operation. Unused sterilized instruments shall be resterilized at intervals of no more than six months from the date of the last sterilization.

(C) Used, nondisposable instruments shall be kept in a separate, puncture resistant container until brush scrubbed in hot water and soap and then sterilized by autoclaving.

(D) If used instruments are ultrasonically cleaned prior to being placed in the used instrument container, they shall be ultrasonically cleaned and then rinsed under running hot water prior to being placed in the used instrument container.

(E) The ultrasonic unit shall be sanitized daily with a germicidal solution.

(F) If used instruments are not ultrasonically cleaned prior to being placed in the used instrument container, they shall be kept in a germicidal or soap solution until brush scrubbed in hot water and soap and then sterilized by autoclaving.

(G) All nondisposable instruments, including the needle tubes, shall be sterilized and shall be handled and stored in such a manner as to prevent contamination. Instruments to be sterilized shall be sealed in bags made specifically for the purpose of autoclave sterilization and shall include the date of sterilization. If nontransparent sterilization bags are utilized, the bag shall also list the contents.

(H) Autoclave sterilization bags, with a color code indicator which changes color upon proper steam sterilization, shall be utilized during the autoclave sterilization process.

(I) Instruments shall be placed in the autoclave in such a manner as to allow live steam to circulate around them.

(J) No rusty, defective or faulty instruments shall be kept in the studio.

(6) Aftercare of tattoo.

The completed tattoo shall be washed with a single use towel saturated with an antibacterial solution.

(c) Facilities and equipment.

(1) General physical environment.

(A) Tattoo studios shall have at least fifty footcandles of light and adequate ventilation. Walls and ceilings shall be painted a light color.

(B) The floor of the tattoo workroom shall be constructed of impervious material. The floor shall be swept and wet-mopped daily. Floors, walls or ceilings shall not be swept or cleaned while tattooing is in operation.

(C) Convenient, clean and sanitary toilet and hand-washing facilities shall be made accessible to customers.

(D) The building and equipment shall be maintained in a state of good repair at all times. The studio premises shall be kept clean, neat and free of litter and rubbish.

(2) Workroom.

(A) Each tattoo studio shall have a workroom separate from a waiting room or any room or rooms used for any other purpose. The workroom may not be used as a corridor for access to other rooms. Patrons or customers shall be tattooed only in the workroom.

(B) The workroom shall be equipped with hot and cold running water, with one sink or basin per artist operating at the same time.

(C) The sinks and basins shall be for the exclusive use of the tattoo artists for washing their hands and preparing customers for tattooing. They shall be equipped with foot, wrist or single-lever action controls, soap, a germicidal solution, single-use towels and individual hand brushes clean and in good repair for each tattoo artist. All plumbing shall be in compliance with industry standards.

(D) Persons may not consume any food or drink nor smoke in the workroom.

(d) Disposal of waste.

The tattoo studio operator shall comply with rules promulgated by the secretary regarding the disposal of medical wastes.

(e) Registration requirements; inspections by local or regional boards of health; permit fees.

(1) Tattoo studios in West Virginia shall obtain a West Virginia business registration certificate and shall register with their local or regional board of health.

(2) Each local or regional board of health shall conduct annual inspections of each tattoo studio to determine compliance with this article. Every person, firm or corporation operating a tattoo studio in West Virginia shall apply to their local or regional board of health for the inspection. The local or regional boards of health shall attempt to conduct the inspections within ten days of the receipt of the request for inspection.  If it is impracticable for the local or regional board of health to conduct the investigation within ten days after receiving the application, the boards may issue to the applicant a temporary operating permit which shall be valid for thirty days or until a regular inspection is made, whichever occurs first.

(3) Upon a determination by the inspecting authority that any tattoo studio is not in compliance with the provisions of this article, the inspection authority shall have the power to order the tattoo studio to cease operations until a time as the inspecting authority determines that the studio is in compliance.

(4) Upon a determination by the inspecting authority that the tattoo studio is in compliance with the provisions of this article, there shall be issued to the studio an operating permit that shall be posted in a conspicuous place, clearly visible to the general public.

(5) The fee for the issuance of an operating permit issued pursuant to this article shall be $200 and shall be paid by the tattoo studio receiving the permit. The fee shall be collected by and paid to the local or regional boards of health.

§16-8-4. Tanning facilities.


(a) Operation standards.

(1) A tanning facility shall provide to any patron who wishes to use a tanning device located within its tanning facility a disclosure and consent form relating to use of a tanning device that contains the current United States Food and Drug Administration warning as follows:

“Danger. Ultraviolet Radiation. Follow instructions. Avoid overexposure. As with natural sunlight, overexposure can cause eye and skin injury and allergic reactions. REPEATED EXPOSURE MAY CAUSE PREMATURE AGING OF THE SKIN AND SKIN CANCER. WEAR PROTECTIVE EYEWEAR; FAILURE TO DO SO MAY RESULT IN SEVERE BURNS OR LONG-TERM INJURY TO THE EYES. Medications or cosmetics may increase your sensitivity to the ultraviolet radiation. Consult physician before using tanning device if you are using medications or have a history of skin problems or believe yourself especially sensitive to sunlight. If you do not tan in the sun, you are unlikely to tan from use of this product.”

(2) The disclosure and consent form must have a place for the patron's signature and the date. A signed and dated copy of the disclosure and consent form shall be maintained by the tanning facility and remains valid for one year from the date it was signed.

(3) All patrons are required to present proof of age prior to use of a tanning device. Proof of age shall be satisfied with a driver’s license or other government-issued identification containing the date of birth and a photograph of the individual. Persons under the age of eighteen may not be permitted to use a tanning device. 

(b) Local or regional health department authority to inspect.

Local or regional health departments shall have the authority to enter and inspect a tanning facility to determine compliance with the requirements of this article.

(c) Exception for health care providers.

Nothing in this article may be construed as prohibiting any health care provider licensed under chapter thirty of this code from performing any action within the scope of his or her practice that results in prescribing the use of a photo therapy device to a patient regardless of the patient’s age for treatment of a medical condition.

§16-8-5. Penalties.


(a) Body piercing studio business.

(1) Any owner of a body piercing studio who does not obtain a West Virginia business registration certificate, who does not register with the local or regional board of health, or who fails to request an inspection as required by this article is guilty of a misdemeanor and, upon conviction thereof, for a first offense, may have all of the body piercing equipment and paraphernalia confiscated and shall be fined $100.

(2) For a second offense, which is a misdemeanor, the owner may have all of the body piercing equipment and paraphernalia confiscated and shall be fined not less than $500 nor more than $1,000 or be imprisoned in the county or regional jail for not less than ten days nor more than one year, or both fined and imprisoned.

(3) For a third offense, which is a misdemeanor, the owner shall have all the body piercing equipment and paraphernalia confiscated, shall be fined not less than $1,000 nor more than $5,000, or be imprisoned in the county or regional jail not less than thirty days nor more than one year, or both fined and imprisoned.

(b) Tattoo studio business.

(1) Any owner of a tattoo studio who does not obtain a West Virginia business registration certificate, who does not register with their local or regional board of health or who fails to request an inspection as required by this article shall be guilty of a misdemeanor and, upon conviction thereof, for a first offense, may have all of the tattoo equipment and paraphernalia confiscated and shall be fined $100.

(2) For a second offense, which is a misdemeanor, the owner may have all of the tattoo equipment and paraphernalia confiscated and shall be fined not less than $500 nor more than $1,000 or confined in a county or regional jail not less than ten days nor more than one year, or both fined and imprisoned.

(3) For a third offense, which is a misdemeanor, the owner shall have all the tattoo equipment and paraphernalia confiscated, shall be fined not less than $1,000 nor more than $5,000, or confined in a county or regional jail not less than thirty days nor more than one year, or both fined and imprisoned

(c) Tanning facilities.

(1) Any owner of a tanning facility who violates the requirements of this article is guilty of a misdemeanor and, upon conviction thereof, for a first offense, shall be fined $100.

(2) For a second offense, the owner is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $500.

(3) For a third or subsequent offense, the owner is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000.

§16-8-6. Rulemaking.


The secretary shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code as follows:

(1) Body piercing studio business.

(A) General physical requirements for facilities and equipment, including requirements for adequate ventilation and lighting;

(B) Record keeping requirements and forms;

(C) Written notification of the risks of body piercing procedures and minimum age requirements;

(D) Body piercing procedures, including, but not limited to, safety and sterilization procedures; the use of antimicrobial solutions, needles, single use instruments and other instruments; the exercise of standard precautions; and instructions on the care of the skin after body piercing procedures;

(E) Permitting requirements for operators and technicians, including fees for permits and renewals of permits sufficient to cover the costs of inspecting facilities and administering this article; and

(F) For the disposal of waste in compliance with the rules of the department regarding the disposal of medical wastes.

(G) The rules required by this subsection may also include provisions on training or educational requirements or materials; health screenings for technicians; and any other provisions considered necessary to protect the public or assure adequate health and safety.

(H) The rules required by this subsection may also include limitations or prohibitions on the performance of certain procedures, including, but not limited to, procedures referred to as cutting, branding and scarification, which are identified as posing a risk to the public health and safety.

(2) Eletrologists.

The secretary shall purpose rules to regulate eletrologists. These rules shall include, at a minimum, requirements to be enforced by local or regional health authorities throughout the state and may include any other provisions deemed necessary by the secretary for the health and safety of the practice of electrology or electrolysis.


ARTICLE 22. DETECTION AND CONTROL OF PHENYLKETONURIA, GALACTOSEMIA, HYPOTHYROIDISM, AND CERTAIN OTHER DISEASES IN NEWBORN CHILDREN.


§16-22-1. Findings.

[Repealed]


§16-22-2. Program to combat intellectual disability or other severe health hazards; rules; facilities for making tests.

[Repealed]

§16-22-3. Tests for diseases specified by the state Public Health Commissioner; reports; assistance to afflicted children; Public Health Commissioner to propose rules.


[Repealed]

§16-22-4. Penalties for violating provisions of article.


[Repealed]

§16-22-5. Severability.


[Repealed]

§16-22-6. Effective date.


[Repealed]

ARTICLE 22A. TESTING OF NEWBORN INFANTS FOR HEARING IMPAIRMENTS.


§16-22A-1. Testing required.

[Repealed]

§16-22A-2. Rule making authorized.


[Repealed]

§16-22A-3. Fees for testing; payment of same.


[Repealed]

§16-22A-4. Hearing impairment testing advisory committee established.


[Repealed]

ARTICLE 22B. BIRTH SCORE PROGRAM.


§16-22B-1. Legislative findings; intent; purpose.

[Repealed]


§16-22B-2. Birth score program established.

[Repealed]


§16-22B-3. Determination of birth score; referral to physician.

[Repealed]


§16-22B-4. Rules.

[Repealed]

ARTICLE 24. STATE HEMOPHILIA PROGRAM.


§16-24-8. When payments for care and treatment of hemophiliacs may be made by director.

[Repealed]

ARTICLE 29E. LEGISLATIVE OVERSIGHT COMMISSION ON HEALTH AND HUMAN RESOURCES ACCOUNTABILITY.


§16-29E-2. Legislative intent.

It is the intent of the Legislature that all actions taken pursuant to the provisions of this article by the Legislature and the various agencies within the Department of Health and Human Resources Compliance, the Department of Healthcare Facilities and the Department of Human Services serve the following core set of principles:

(1) That all health and social programs offered under state authority be coordinated to maximize efficiencies and minimize competition within the various agencies thereby addressing the needs of the citizens more effectively;

(2) That communication be facilitated among the various agencies within the Department of Health and Human Resources these departments and between the department these departments and the Legislature;

(3) That policy changes, not made by legislative rule, be discussed with the commission for purposes of coordinating those policies with existing programs and stated goals;

(4) That programs or policies implemented in accordance with federal mandates be communicated to the commission;

(5) That in developing and implementing programs with private or federal grant moneys, the various agencies communicate their efforts to the commission to ensure and facilitate future state funding; and

(6) That agencies previously exempted from rule-making review by federal or state statutes advise the commission of program changes which may affect the health and well-being of the citizens of West Virginia.


§16-29E-3. Definitions.

As used in this article:

(a) "Agency" means those various agencies, authorities, boards, committees, commissions or departments of the Department of Health and Human Resources the Department of Healthcare Facilities, the Department of Health and Compliance and the Department of Human Services with authority to promulgate legislative rules pursuant to this chapter that regulate health care providers, practitioners or consumers; or those offering social services programs;

(b) "Commission" means the Legislative Oversight commission on health and human resources accountability; and

(c) "Department" or “departments” means the Department of Health and Human Resources. Department of Healthcare Facilities, the Department of Health and Compliance and the Department of Human Services.


§16-29E-5. Powers and duties of commission.

(a) The powers, duties and responsibilities of the commission shall include the following:

(1) Make a continuing investigation, study and review of the practices, policies and procedures of the health care and social services agencies in this state;

(2) Make a continuing investigation, study and review of all matters related to health and social policy in the state;

(3) Review program development by the various agencies of the Department of Health and Human Resources the Department of Healthcare Facilities the Department of Health and Compliance and, the Department of Human Services if those programs impact the physical, emotional or social well-being of the citizens of West Virginia;

(4) Conduct studies on:

(A) The amount of funds expended by hospitals and other health care providers of this state for services to persons who are unable to pay for those services and for which they receive no other form of reimbursement;

(B) The extent to which persons in this state forego needed medical services because of insufficient income and assets to pay for those services;

(C) The extent to which the state is maximizing available federal programs and moneys in providing health care services to the citizens of this state;

(D) The operation of the programs and funds created by §16-29C-1 et seq. of this code; and

(E) The roles of the public, private and private nonprofit sectors in providing health care services to the citizens of this state;

(5) Review and study the state Medicaid program in order to determine if the state Medicaid agency, as the payor of last resort, is expending maximum effort to identify alternate private insurance resources for Medicaid beneficiaries;

(6) Review and study the feasibility and financial impact upon the state of assuring increased access to Medicaid beneficiaries to primary health care in the nonhospital setting by requiring enrollment in a primary care clinic program, if available;

(7) Review and study the feasibility and financial impact upon the state of the establishment of different and lesser schedules of payment for primary health services delivered by a hospital emergency room as compared to the schedule of payments for emergency room services of a true medical emergency nature; and

(8) Conduct a study on the effects of rural health networks, including effects on the quality, cost and availability of care. and

(9) Meet jointly with the advisory committee created in §16-35-1 et seq. of this code to determine methods for coordinating the collection and analysis of health care information within the state, including the development of health information systems that will allow for the electronic transmittal of data and access by the various agencies of government.

(b) The commission shall make annual reports to the Legislature regarding the results of all investigations, studies and reviews pursuant to the provisions of §16-29E-7 of this code.


ARTICLE 37. BODY PIERCING STUDIO BUSINESS.


§16-37-1. Short title.

[Repealed]

§16-37-2. Definitions.


[Repealed]

§16-37-3. Registration requirements; inspections by local boards of health; posting of permit; power of local board of health to order studio to close.


[Repealed]


§16-37-4. Rules to be proposed by the Department of Health and Human Resources.

[Repealed]


§16-37-5. Violations and penalties.

[Repealed]


ARTICLE 38. TATTOO STUDIO BUSINESS.


§16-38-1. Definitions.

[Repealed]


§16-38-2. Studio sanitation.

[Repealed]


§16-38-3. Operation standards.

[Repealed]


§16-38-4. Facilities and equipment.

[Repealed]


§16-38-5. Disposal of waste.

[Repealed]


§16-38-6. Registration requirements; inspections by local or regional boards of health; permit fees.


[Repealed]


§16-38-7. Violations and penalties.

[Repealed]


ARTICLE 44. THE PULSE OXIMETRY NEWBORN TESTING ACT.


§16-44-1. Legislative findings.

[Repealed]


§16-44-2. Pulse oximetry screening required; definition; rules.

[Repealed]


ARTICLE 45. TANNING FACILITIES.


§16-45-1. Definitions.

[Repealed]


§16-45-2. Exception for health care providers.

[Repealed]


§16-45-3. Operation standards.

[Repealed]


§16-45-4. Local health department authority to inspect.

[Repealed]


§16-45-5. Violations and penalties.

[Repealed]


CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.


ARTICLE 5. SERIOUS TRAFFIC OFFENSES.


§17C-5-6a. Taking a child into custody; driving a motor vehicle with any amount of blood alcohol.

(a) A preliminary breath analysis may be administered to a child whenever a law-enforcement official has reasonable cause to believe the child to have been driving a motor vehicle with any amount of alcohol in his or her blood for the purpose of determining the child's blood alcohol content. Such breath analysis must be administered as soon as possible after the law-enforcement officer arrives at a reasonable belief that the child has been driving a motor vehicle with any amount of alcohol in his or her blood. Any preliminary breath analysis administered pursuant to this subsection must be administered with a device and in a manner approved by the division of health Department of Health and Compliance for that purpose. If a preliminary breath analysis is administered, the results shall be used solely for the purpose of guiding the officer in deciding whether the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, and should, therefore, be taken into custody to administer a secondary test in accordance with the provisions of this section.

(b) A child may be taken into custody by a law-enforcement official without a warrant or court order if the official has reasonable grounds to believe the child to have been driving a motor vehicle with any amount of alcohol in his or her blood. If a preliminary breath analysis is administered and the results of the analysis indicate that the child has an alcohol concentration in his or her blood of less than two hundredths of one percent, by weight, the child may not be taken into custody unless other grounds exist under §49-5-8(b) of this code. Upon taking a child into custody pursuant to the provisions of this section, the official shall take all reasonable steps to cause notification to be made to the child's parent or custodian or, if the parent or custodian cannot be located, to a close relative.

(c) Upon taking a child into custody pursuant to this section, the official shall take the child to a facility where a secondary test of the child's blood or urine may be administered at the direction of the official or a test of the child's breath may be administered by the official. The law-enforcement agency by which such law-enforcement official is employed shall designate whether the secondary test is a test of either blood, breath or urine: Provided, That if the test so designated is a blood test and the child refuses to submit to the blood test, then the law-enforcement official taking the child into custody shall designate in lieu thereof a breath test to be administered. Notwithstanding the provisions of §17C-5-7 of this code, a refusal to submit to a blood test only shall not result in the revocation of the child's license to operate a motor vehicle in this state. Any child taken into custody pursuant to this section shall be given a written statement advising him or her that a refusal to submit to a secondary test of either blood, breath or urine, as finally designated by the law-enforcement agency or official in accordance with this subsection, will result in the suspension of his or her license to operate a motor vehicle in this state for a period of at least thirty days or a revocation of the license for a period up to life.

(d) If the law-enforcement official taking the child into custody is employed by a law-enforcement agency which does not have available the testing equipment or facilities necessary to conduct any secondary breath test which may be administered pursuant to the provisions of this section, then the official who took the child into custody may request another qualified person to administer a secondary breath test: Provided, That the breath test shall be administered in the presence of the official who took the child into custody. The results of such breath test may be used in evidence to the same extent and in the same manner as if such test had been conducted by the law-enforcement official who took the child into custody. The qualified person administering the breath test must be a member of the West Virginia state police, the sheriff of the county wherein the child was taken into custody or any deputy of such sheriff or a law-enforcement official of another municipality within the county wherein the child was taken into custody. Only the person actually administering the secondary breath test is competent to testify as to the results and the veracity of the test. If the secondary test is a blood test, the test shall be conducted in accordance with the provisions of §17C-5-6 of this code.

(e) After taking the child into custody, if the law-enforcement official has reasonable cause to believe that the act of the child in driving the motor vehicle is such that it would provide grounds for arrest for an offense defined under the provisions of §17C-5-2 of this code, if the child were an adult, then the official shall proceed to treat the child in the same manner as any other child taken into custody without a warrant or court order, in accordance with the provisions of §17C-5-8 of this code.

(f) If the results of any secondary test administered pursuant to this section indicate that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of eight hundredths of one percent or less, by weight, and if the law-enforcement official does not have reasonable cause to believe that the act of the child in driving the motor vehicle is such that it would provide grounds for arrest for an offense defined under the provisions of §17C-5-2 of this code, if the child were an adult, then the official shall release the child: Provided, That if the results of any secondary test administered pursuant to this section indicate that the child, at the time of driving the motor vehicle, had an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, the child shall only be released to a parent or custodian, or to some other responsible adult.


ARTICLE 5A. ADMINISTRATIVE PROCEDURES FOR SUSPENSION AND REVOCATION OF LICENSES FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL, CONTROLLED SUBSTANCES OR DRUGS.


§17C-5A-3. Safety and treatment program; reissuance of license.

(a) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse The Department of Human Services, shall administer a comprehensive safety and treatment program for persons whose licenses have been revoked under the provisions of this article or §17C-5-7 of this code or §17B-3-5(6) of this code and shall also establish the minimum qualifications for mental health facilities, day report centers, community correction centers or other public agencies or private entities conducting the safety and treatment program: Provided, That the Department of Health and Human Resources, Division of Alcoholism and Drug Abuse the Department of Human Services may establish standards whereby the division department will accept or approve participation by violators in another treatment program which provides the same or substantially similar benefits as the safety and treatment program established pursuant to this section.

(b) The program shall include, but not be limited to, treatment of alcoholism, alcohol and drug abuse, psychological counseling, educational courses on the dangers of alcohol and drugs as they relate to driving, defensive driving or other safety driving instruction and other programs designed to properly educate, train and rehabilitate the offender.

(c) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse The Department of Human Services shall provide for the preparation of an educational and treatment the program for each person whose license has been revoked under the provisions of this article or §17C-5-7 of this code or §17B-3-5(6) of this code which shall contain the following: (1) A listing and evaluation of the offender's prior traffic record; (2) the characteristics and history of alcohol or drug use, if any; (3) his or her amenability to rehabilitation through the alcohol safety program; and (4) a recommendation as to treatment or rehabilitation and the terms and conditions of the treatment or rehabilitation. The program shall be prepared by persons knowledgeable in the diagnosis of alcohol or drug abuse and treatment.

(d) There is hereby created a special revenue account within the State Treasury known as the Department of Health and Human Resources Department of Human Services Safety and Treatment Fund. The account shall be administered by the Secretary of the Department of Health and Human Resources the Department of Human Services for the purpose of administering the comprehensive safety and treatment program established by subsection (a) of this section. The account may be invested, and all earnings and interest accruing shall be retained in the account. The Auditor shall conduct an audit of the fund at least every three fiscal years.

Effective July 1, 2010, the State Treasurer shall make a one-time transfer of $250,000 from the Motor Vehicle Fees Fund into the Department of Health and Human Resources  Department of Human Services Safety and Treatment Fund.

(e) (1) The program provider shall collect the established fee from each participant upon enrollment unless the department has determined that the participant is an indigent based upon criteria established pursuant to legislative rule authorized in this section.

(2) If the department determined that a participant is an indigent based upon criteria established pursuant to the legislative rule authorized by this section, the department shall provide the applicant with proof of its determination regarding indigency, which proof the applicant shall present to the interlock provider as part of the application process provided in §17C-5A-3a of this code and/or the rules promulgated pursuant thereto.

(3) Program providers shall remit to the Department of Health and Human Resources the Department of Human Services a portion of the fee collected, which shall be deposited by the Secretary of the Department of Health and Human Resources the Department of Human Services into the Department of Health and Human Resources the Department of Human Services Safety and Treatment Fund. The Department of Health and Human Resources The Department of Human Services shall reimburse enrollment fees to program providers for each eligible indigent offender.

(f) On or before January 15 of each year, the Secretary of the Department of Health and Human Resources the Department of Human Services shall report to the Legislature on:

(1) The total number of offenders participating in the safety and treatment program during the prior year;

(2) The total number of indigent offenders participating in the safety and treatment program during the prior year;

(3) The total number of program providers during the prior year; and

(4) The total amount of reimbursements paid to program provider during the prior year.

(g) The Commissioner of the Division of Motor Vehicles, after giving due consideration to the program developed for the offender, shall prescribe the necessary terms and conditions for the reissuance of the license to operate a motor vehicle in this state revoked under this article or §17C-5-7 of this code or §17B-3-5(6) of this code which shall include successful completion of the educational, treatment or rehabilitation program, subject to the following:

(1) When the period of revocation is six months, the license to operate a motor vehicle in this State may not be reissued until: (A) At least ninety days have elapsed from the date of the initial revocation, during which time the revocation was actually in effect;(B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid.

(2) When the period of revocation is for a period of one year or for more than a year, the license to operate a motor vehicle in this state may not be reissued until: (A) At least one-half of the time period has elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid. Notwithstanding any provision in this code, a person whose license is revoked for refusing to take a chemical test as required by §17C-5-7 of this code for a first offense is not eligible to reduce the revocation period by completing the safety and treatment program.

(3) When the period of revocation is for life, the license to operate a motor vehicle in this State may not be reissued until: (A) At least ten years have elapsed from the date of the initial revocation, during which time the revocation was actually in effect; (B) the offender has successfully completed the program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a revocation hearing have been paid.

(4) Notwithstanding any provision of this code or any rule, any mental health facilities or other public agencies or private entities conducting the safety and treatment program when certifying that a person has successfully completed a safety and treatment program shall only have to certify that the person has successfully completed the program.

(h) (1) The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse The Department of Human Services shall provide for the preparation of an educational program for each person whose license has been suspended for sixty days pursuant to the provisions of §17C-5A-2(n) of this code. The educational program shall consist of not less than twelve nor more than eighteen hours of actual classroom time.

(2) When a sixty-day period of suspension has been ordered, the license to operate a motor vehicle may not be reinstated until: (A) At least sixty days have elapsed from the date of the initial suspension, during which time the suspension was actually in effect; (B) the offender has successfully completed the educational program; (C) all costs of the program and administration have been paid; and (D) all costs assessed as a result of a suspension hearing have been paid.

(i) A required component of the treatment program provided in subsection (b) of this section and the education program provided for in subsection (c) of this section shall be participation by the violator with a victim impact panel program providing a forum for victims of alcohol and drug-related offenses and offenders to share first-hand experiences on the impact of alcohol and drug-related offenses in their lives. The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse The Department of Human Services shall propose and implement a plan for victim impact panels where appropriate numbers of victims are available and willing to participate and shall establish guidelines for other innovative programs which may be substituted where the victims are not available to assist persons whose licenses have been suspended or revoked for alcohol and drug-related offenses to gain a full understanding of the severity of their offenses in terms of the impact of the offenses on victims and offenders. The plan shall require, at a minimum, discussion and consideration of the following:

(A) Economic losses suffered by victims or offenders;

(B) Death or physical injuries suffered by victims or offenders;

(C) Psychological injuries suffered by victims or offenders;

(D) Changes in the personal welfare or familial relationships of victims or offenders; and

(E) Other information relating to the impact of alcohol and drug-related offenses upon victims or offenders.

The Department of Health and Human Resources, Division of Alcoholism and Drug Abuse The Department of Human Services shall ensure that any meetings between victims and offenders shall be nonconfrontational and ensure the physical safety of the persons involved.

(j)(1) The Secretary of the Department of Health and Human Resources the Department of Human Services shall promulgate a rule for legislative approval in accordance with §29A-3-1 et seq. of this code to administer the provisions of this section and establish a fee to be collected from each offender enrolled in the safety and treatment program. The rule shall include: (A) A reimbursement mechanism to program providers of required fees for the safety and treatment program for indigent offenders, criteria for determining eligibility of indigent offenders, and any necessary application forms; and (B) program standards that encompass provider criteria including minimum professional training requirements for providers, curriculum approval, minimum course length requirements and other items that may be necessary to properly implement the provisions of this section.

(2) The Legislature finds that an emergency exists and, therefore, the secretary shall file by July 1, 2010, an emergency rule to implement this section pursuant to the provisions of §29A-3-15 of this code.

(k) Nothing in this section may be construed to prohibit day report or community correction programs, authorized pursuant to §62-11C-1 et seq. of this code, from administering a comprehensive safety and treatment program pursuant to this section.


CHAPTER 18. EDUCATION.


ARTICLE 4. COUNTY SUPERINTENDENT OF SCHOOLS.


§18-4-2. Qualifications; health certificate; disability; acting superintendent.


(a) Each county superintendent shall hold a professional administrative certificate endorsed for superintendent, or a first class permit endorsed for superintendent, subject to the following:

(1) A superintendent who holds a first class permit may be appointed for one year only, and may be reappointed two times for an additional year each upon an annual evaluation by the county board and a determination of satisfactory performance and reasonable progress toward completion of the requirements for a professional administrative certificate endorsed for superintendent;

(2) Any candidate for superintendent, assistant superintendent or associate superintendent, who possesses an earned doctorate from an accredited institution of higher education and either has completed three successful years of teaching in public education or has the equivalent of three years of experience in management or supervision as defined by state board rule, after employment by the county board shall be granted a permanent administrative certificate and shall be a licensed county superintendent;

(3) The state board shall promulgate a legislative rule in accordance with §29A-3B-1 et seq. of this code, to address those cases where a county board finds that course work needed by the county superintendent who holds a first class permit is not available or is not scheduled at state institutions of higher education in a manner which will enable the county superintendent to complete normal requirements for a professional administrative certificate within the three-year period allowed under the permit; and

(4) Any person employed as assistant superintendent or educational administrator prior to June 27, 1988, and who was previously employed as superintendent is not required to hold the professional administrative certificate endorsed for superintendent.

(b) In addition to other requirements set forth in this section, a county superintendent shall meet the following health-related conditions of employment:

(1) Before entering upon the discharge of his or her duties, file with the president of the county board a certificate from a licensed physician certifying the following:

(A) A tuberculin skin test, of the type Mantoux test (PPD skin test), approved by the Director of the Division of Health Secretary of the Department of Health and Compliance, has been made within four months prior to the beginning of the term of the county superintendent; and

(B) The county superintendent does not have tuberculosis in a communicable state based upon the test results and any further study;

(2) After completion of the initial test, the county superintendent shall have an approved tuberculin skin test once every two years or more frequently if medically indicated. Positive reactors to the skin test are to be referred immediately to a physician for evaluation and indicated treatment or further studies;

(3) A county superintendent who is certified by a licensed physician to have tuberculosis in a communicable stage shall have his or her employment discontinued or suspended until the disease has been arrested and is no longer communicable; and

(4) A county superintendent who fails to complete required follow-up examinations as set forth in this subsection shall be suspended from employment until a report of examination is confirmed.

ARTICLE 5. COUNTY BOARD OF EDUCATION.


§18-5-22c. Providing for the maintenance and use of epinephrine auto-injectors; administration of injections; notice; indemnity from liability; rules.

(a) A public, private, parochial or denominational school located within this state may possess and maintain at the school a supply of epinephrine auto-injectors for use in emergency medical care or treatment for an anaphylactic reaction. A prior diagnosis for a student or school personnel requiring the use of epinephrine auto-injectors is not necessary to permit the school to stock epinephrine auto-injectors. Epinephrine auto-injectors shall be maintained by the school in a secure location which is only accessible by medical personnel and authorized nonmedical personnel and not by students.

(b) An allopathic physician licensed to practice pursuant to the provisions of §30-3-1 et seq. of this code or an osteopathic physician licensed to practice pursuant to the provisions of §30-14-1 et seq. of this code may prescribe within the course of his or her professional practice standing orders and protocols for use when necessary by a school which wishes to maintain epinephrine auto-injector pursuant to the provisions of this section.

(c) A school nurse, as set forth in §18-5-22 of this code, may administer an epinephrine auto-injector to a student or school personnel during regular school hours or at a school function when the school nurse medically believes the individual is experiencing an anaphylactic reaction. A school nurse may use the school supply of epinephrine auto-injectors for a student or school personnel authorized to self-administer that meet the requirements of a prescription on file with the school.

(d) Nonmedical school personnel who have been trained in the administration of an epinephrine auto-injector and who have been designated and authorized by the school or county board to administer the epinephrine auto-injector are authorized to administer an epinephrine auto-injector to a student or school personnel during regular school hours or at a school function when the authorized and designated nonmedical school personnel reasonably believes, based upon their training, that the individual is experiencing an anaphylactic reaction. Nonmedical school personnel may use the school supply of epinephrine auto-injectors for a student or school personnel authorized to self-administer that meet the requirements of a prescription on file with the school.

(e) School transportation employees, including bus drivers, who have been trained in the administration of an epinephrine auto-injector and who have been designated and authorized by the school or county board to administer an epinephrine auto-injector may administer an epinephrine auto-injector to a student or school personnel during transportation to or from a school function when the school transportation employee reasonably believes, based upon his or her training, that the individual is experiencing an anaphylactic reaction. A school transportation employee may use the individual’s personal supply of epinephrine auto-injectors or the school’s supply of epinephrine auto-injectors for a student or school personnel authorized to self-administer that meet the requirements of a prescription on file with the school: Provided, That a school transportation employee shall defer to an individual possessing a higher degree of medical training or the parent of the child experiencing an anaphylactic reaction, if either are present at the time of the reaction; Provided, however, That the school transportation employee, trained and authorized to administer epinephrine auto-injectors, is not subject to the terms of §18-5-22 of this code.

(f) Prior notice to the parents of a student of the administration of the epinephrine auto-injector is not required. Immediately following the administration of the epinephrine auto-injector, the school shall provide notice to the parent of a student who received an auto-injection.

(g) A school nurse, a trained school transportation employee, or trained and authorized nonmedical school personnel who administer an epinephrine auto-injection to a student or to school personnel as provided in this section is immune from liability for any civil action arising out of an act or omission resulting from the administration of the epinephrine auto-injection unless the act or omission was the result of the school nurse, school transportation employee, or trained and authorized nonmedical school personnel’s gross negligence or willful misconduct.

(h) For the purposes of this section, all county boards of education may participate in free or discounted drug programs from pharmaceutical manufacturers to provide epinephrine auto-injectors to schools in their counties which choose to stock auto-injectors.

(i) All county boards of education are required to collect and compile aggregate data on incidents of anaphylactic reactions resulting in the administration of school maintained epinephrine auto-injectors in their county during a school year and forward the data to the state superintendent of schools. The state superintendent of schools shall prepare an annual report to be presented to the Joint Committee on Government and Finance as set forth in §4-3-1 et seq. of this code, by December 31 of each year.

(j) The State Board of Education, as defined in §18-2-1 et seq. of this code, shall consult with the state health officer Commissioner of the Bureau for Public Health, as defined in section four, article three, chapter thirty §16-1-1 et seq. of this code, and promulgate rules necessary to effectuate the provisions of this section in accordance with the provisions of §29A-3B-1 et seq. of this code. The rules shall provide, at a minimum, for:

(1) The criteria for selection and minimum requirements of nonmedical school personnel and school transportation employees who may administer epinephrine auto-injectors following the necessary training;

(2) The training requirements necessary for nonmedical school personnel and school transportation employees to be authorized to administer an epinephrine auto-injection;

(3) Training on anaphylaxis and allergy awareness for food service workers in the school system, if easily available locally;

(4) Storage requirements for maintaining the epinephrine auto-injectors within the schools;

(5) Comprehensive notice requirements to the parents of a student who was administered a school maintained epinephrine auto-injection including who administered the injection, the rational for administering the injection, the approximate time of the injection and any other necessary elements to make the student’s parents fully aware of the circumstances surrounding the administration of the injection;

(6) Any and all necessary documentation to be kept and maintained regarding receipt, inventory, storage and usage of all epinephrine auto-injectors;

(7) Detailed reporting requirements for county boards of education on incidents of use of school maintained epinephrine auto-injectors during a school year; and

(8) Any other requirements necessary to fully implement this section.

ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.


§18-7A-3. Definitions.

As used in this article, unless the context clearly requires a different meaning:

(1) "Accumulated contributions" means all deposits and all deductions from the gross salary of a contributor plus regular interest.

(2) "Accumulated net benefit" means the aggregate amount of all benefits paid to or on behalf of a retired member.

(3) "Actuarially equivalent" or "of equal actuarial value" means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the retirement board in accordance with the provisions of this article: Provided, That when used in the context of compliance with the federal maximum benefit requirements of Section 415 of the Internal Revenue Code, "actuarially equivalent" shall be computed using the mortality tables and interest rates required to comply with those requirements.

(4) "Annuities" means the annual retirement payments for life granted beneficiaries in accordance with this article.

(5) "Average final salary" means the average of the five highest fiscal year salaries earned as a member within the last fifteen fiscal years of total service credit, including military service as provided in this article, or if total service is less than fifteen years, the average annual salary for the period on which contributions were made: Provided, That salaries for determining benefits during any determination period may not exceed the maximum compensation allowed as adjusted for cost of living in accordance with §5-10D-7 of this code and Section 401(a)(17) of the Internal Revenue Code.

(6) "Beneficiary" means the recipient of annuity payments made under the retirement system.

(7) "Contributor" means a member of the retirement system who has an account in the teachers accumulation fund.

(8) "Deposit" means a voluntary payment to his or her account by a member.

(9) "Employer" means the agency of and within the state which has employed or employs a member.

(10) "Employer error" means an omission, misrepresentation or violation of relevant provisions of the West Virginia Code or of the West Virginia Code of State Regulations or the relevant provisions of both the West Virginia Code and of the West Virginia Code of State Regulations by the participating public employer that has resulted in an underpayment or overpayment of contributions required. A deliberate act contrary to the provisions of this section by a participating public employer does not constitute employer error.

(11) "Employment term" means employment for at least ten months, a month being defined as twenty employment days.

(12) "Gross salary" means the fixed annual or periodic cash wages paid by a participating public employer to a member for performing duties for the participating public employer for which the member was hired. Gross salary shall be allocated and reported in the fiscal year in which the work was done. Gross salary also includes retroactive payments made to a member to correct a clerical error, or made pursuant to a court order or final order of an administrative agency charged with enforcing federal or state law pertaining to the member's rights to employment or wages, with all retroactive salary payments to be allocated to and considered paid in the periods in which the work was or would have been done. Gross salary does not include lump sum payments for bonuses, early retirement incentives, severance pay or any other fringe benefit of any kind including, but not limited to, transportation allowances, automobiles or automobile allowances, or lump sum payments for unused, accrued leave of any type or character.

(13) "Internal Revenue Code" means the Internal Revenue Code of 1986, as it has been amended.

(14) "Member" means any person who has accumulated contributions standing to his or her credit in the state Teachers Retirement System. A member shall remain a member until the benefits to which he or she is entitled under this article are paid or forfeited, or until cessation of membership pursuant to §18-7A-13 of this code.

(15) "Members of the administrative staff of the public schools" means deans of instruction, deans of men, deans of women, and financial and administrative secretaries.

(16) "Members of the extension staff of the public schools" means every agricultural agent, boys' and girls' club agent and every member of the agricultural extension staff whose work is not primarily stenographic, clerical or secretarial.

(17) "New entrant" means a teacher who is not a present teacher.

(18) "Nonteaching member" means any person, except a teacher member, who is regularly employed for full-time service by: (A) Any county board of education; (B) the State Board of Education; (C) the Higher Education Policy Commission; (D) the West Virginia Council for Community and Technical College Education; or (E) a governing board, as defined in §18B-1-2 of this code: Provided, That any person whose employment with the Higher Education Policy Commission, the West Virginia Council for Community and Technical College Education or a governing board commences on or after July 1, 1991, is not considered a nonteaching member.

(19) "Plan year" means the twelve-month period commencing on July 1 and ending the following June 30 of any designated year.

(20) "Present member" means a present teacher or nonteacher who is a member of the retirement system.

(21) "Present teacher" means any person who was a teacher within the thirty-five years beginning July 1, 1934, and whose membership in the retirement system is currently active.

(22) "Prior service" means all service as a teacher completed prior to July 1, 1941, and all service of a present member who was employed as a teacher, and did not contribute to a retirement account because he or she was legally ineligible for membership during the service.

(23) "Public schools" means all publicly supported schools, including colleges and universities in this state.

(24) "Refund beneficiary" means the estate of a deceased contributor or a person he or she has nominated as beneficiary of his or her contributions by written designation duly executed and filed with the retirement board.

(25) "Regular interest" means interest at four percent compounded annually, or a higher earnable rate if set forth in the formula established in legislative rules, series seven of the Consolidated Public Retirement Board, 162 CSR 7.

(26) "Regularly employed for full-time service" means employment in a regular position or job throughout the employment term regardless of the number of hours worked or the method of pay.

(27) "Required beginning date" means April 1 of the calendar year following the later of: (A) The calendar year in which the member attains age seventy and one-half years; or (B) the calendar year in which the member retires or ceases covered employment under the system after having attained the age of seventy and one-half years.

(28) "Retirant" means any member who commences an annuity payable by the retirement system.

(29) "Retirement board" means the Consolidated Public Retirement Board created pursuant to §5-10D-1 et seq. of this code.

(30) "Retirement system" means the state Teachers Retirement System established by this article.

(31) "Teacher member" means the following persons, if regularly employed for full-time service: (A) Any person employed for instructional service in the public schools of West Virginia; (B) principals; (C) public school librarians; (D) superintendents of schools and assistant county superintendents of schools; (E) any county school attendance director holding a West Virginia teacher's certificate; (F) members of the research, extension, administrative or library staffs of the public schools;(G) the State Superintendent of Schools, heads and assistant heads of the divisions under his or her supervision, or any other employee under the state superintendent performing services of an educational nature;(H) employees of the State Board of Education who are performing services of an educational nature;(I) any person employed in a nonteaching capacity by the State Board of Education, any county board of education, the State Department of Education or the State Teachers Retirement Board, if that person was formerly employed as a teacher in the public schools;(J) all classroom teachers, principals and educational administrators in schools under the supervision of the Division of Corrections, the Division Department of Health and Compliance or the Division of Human Services Department of Human Services; (K) an employee of the State Board of School Finance, if that person was formerly employed as a teacher in the public schools; and(L) any person designated as a 21st Century Learner Fellow pursuant to §18A-3-11 of this code who elects to remain a member of the State Teachers Retirement System provided in this article.

(32) "Total service" means all service as a teacher or nonteacher while a member of the retirement system since last becoming a member and, in addition thereto, credit for prior service, if any.

Age in excess of seventy years shall be considered to be seventy years.


ARTICLE 9E. AIR QUALITY IN NEW SCHOOLS ACT.


§18-9E-3. Air quality in new schools.

(a) In an effort to create well-ventilated school environments and notwithstanding any other provision of this code to the contrary, any new school building designed and constructed in the state by a county board, regardless of the funding source, shall be designed and constructed in compliance with the current standards of the American society of heating, refrigerating and air conditioning engineers handbook (ASHRAE), the national fire protection association code (NFPA) and the code of the building officials and code administrators (BOCA).

(b) Upon notice from the School Building Authority that a new public school building is occupied, the division of health Department of Health and Compliance shall perform radon testing in the school within the first year after occupancy and at least every five years thereafter. The county board shall provide any reasonable assistance to the division of health Department of Health and Compliance that is necessary to perform the radon testing. The radon testing shall include all major student-occupied areas at or below grade level. If it is determined that radon is present in amounts greater than the amount determined to be acceptable by the rules promulgated by the School Building Authority, pursuant to subsection (d) of this section, any industry accepted mitigation technique shall be used to reduce the radon level to the level or below the level determined acceptable by the School Building Authority.

(c) If the School Building Authority determines that it is feasible to test for radon prior to the construction of a school building, the School Building Authority may cause preconstruction site testing for radon to be performed.

(d) The School Building Authority shall promulgate rules pursuant to §29A-3A-1 et seq. of this code to ensure that any new school building designed after the effective date of this article is designed and constructed in accordance with the current ASHRAE, NFPA and BOCA standards. The School Building Authority shall promulgate rules, pursuant to §29A-3A-1 et seq. of this code, that establish standards for safe levels of radon for public school buildings. The rules shall include the requirement that county boards submit all new school designs to the School Building Authority for review and approval for compliance with current education standards and design efficiencies prior to preparation of final bid documents.

(e) On or before July 1, 2002, the School Building Authority shall promulgate rules to establish a process for independent testing, adjusting and balancing (TABS) heating, ventilation and air conditioning (HVAC) systems in new school buildings or renovated schools when the HVAC system has been replaced prior to occupancy. The process shall be consistent with current ASHRAE standards and shall include, but not be limited to, the following:

(1) Requiring HVAC designers to be professional engineers registered in this state in the specific discipline associated with the system being designed;

(2) Requiring a process to ensure that the HVAC system has been installed in the prescribed manner and will operate within the performance guidelines as designed;

(3) Requiring participation of the design engineer who designed the system to verify the intent of the design;

(4) Requiring the TAB agent to be qualified to perform the desired services and perform testing and balancing procedures, or qualified to perform other School Building Authority-approved certification according to the procedures contained in the associated air balance council (AABC) national standards, the national environmental balancing bureau (NEBB) procedural standards and the environment engineering consultants (EEC) standards for testing, adjusting and balancing of environmental systems;

(5) Requiring that the independent TAB agent directly represent the building owner and is under contract with the building owner and paid from project funds;

(6) Requiring that sufficient documentation is provided to the owner to facilitate control and maintenance of the systems in accordance with the manufacturer's requirements;

(7) Requiring that sufficient training is provided by the equipment manufacturer or an agent of the manufacturer to those persons who will operate and maintain the systems prior to occupation of the facility, including at least one full day follow-up training between six and eight months after the facility has been occupied; and

(8) Requiring certification upon successful completion of the TAB process by the independent TAB agent.

(f) To ensure proper maintenance and operation of new and replacement HVAC equipment, the Department of Education, using existing staff, shall provide county maintenance personnel additional training on the equipment and its controls at the site of the installation. The training shall occur within one year after student occupation of any new school facility or at any existing school facility where the HVAC system has been replaced or generally rehabilitated. Additionally, the Department of Education's facility staff shall provide on-site training to the county maintenance staff on the county's HVAC equipment at any facility that has been determined to have problematic indoor air quality as identified through the complaint procedure set forth in state board policy 6202.

(g) Upon completion of the required training, the Department of Education's facility staff shall provide the county board a report summarizing the training that was completed and a plan for continuing education of the county's HVAC staff. If sufficient staff is not available to the county to perform maintenance on HVAC systems, the Department of Education's staff shall assist the county in the development of an immediate and long range maintenance plan to ensure that HVAC systems are maintained and operated according to the manufacturer's recommendations.

(h) Beginning July 1, 2002, and every three months thereafter, the Department of Education shall forward to the School Building Authority copies of any complaints received by the Department of Education of indoor air quality problems which require system repair or replacement and are identified through the complaint procedure established in state board policy 6202.

(i) The state board shall promulgate rules, pursuant to §29A-3B-1 et seq. of this code, in consultation with the division of health, that authorize the use of any appropriate floor covering in public school buildings, based on user needs and performance specifications.


§18-9E-5. Investigation of indoor air quality complaints in existing schools and schools subsequently constructed.

(a) The state board, in consultation with the division of health Department of Health and Compliance, shall promulgate rules pursuant to §29A-3B-1 et seq. of this code which require each county board to investigate all reports of indoor air quality problems within the county. The rules shall set forth a designated official or officials within the county school system to be responsible for addressing, pursuant to this section, any indoor air quality complaints. The rules also shall set forth a procedure for any party to file a complaint with the designated official or officials. Any indoor air quality complaint found to be valid by the designated official or officials shall be addressed by forming a plan of correction. Any county board that addresses an indoor air quality complaint is encouraged to seek any available assistance from local, state and federal agencies in both investigating the complaint and in forming the plan of correction. A county board shall consider any documented plans of closure of a school building when forming any plan of correction for that school building. The rules shall be submitted to the Legislative Oversight Commission on Education Accountability prior to September 1, 1999. Additionally, the rules shall set an appropriate cost for a plan of correction over which all such plans of correction shall be reported to the Legislative Oversight Commission on Education Accountability. Based upon the Legislative Oversight Commission on Education Accountability's experience in receiving the complaints, the commission shall submit a recommendation for funding the plans of correction.

(b) Furthermore, each plan of correction shall be incorporated into each county board's ten-year county-wide major improvement plan set forth in §18-9D-16 of this code. Also pursuant to §18-9D-16 of this code, the state board may restrict the use of the necessary funds or otherwise allocate funds from moneys appropriated by the Legislature for those purposes set forth in §18-9A-9 of this code: Provided, That nothing in this subsection shall be interpreted as requiring that a county board make addressing an air quality complaint a priority over other projects in the county board's ten-year county-wide major improvement plan.


ARTICLE 10K. WEST VIRGINIA TRAUMATIC BRAIN AND SPINAL CORD INJURY REHABILITATION FUND ACT.


§18-10K-2. Board created, membership, terms, officers and staff.

(a) There is hereby established the West Virginia traumatic brain and spinal cord injury rehabilitation fund board.

(b) The board shall consist of twenty-three members. The members shall include:

(1) The Secretary of the Department of Education and the arts, ex officio, or his or her designee;

(2) The Secretary of health and Human resources Services, ex officio, or his or her designee;

(3) The State Superintendent of Schools, ex officio, or his or her designee;

(4) The secretary of the Department of Military Affairs and Public Safety, ex officio, or his or her designee;

(5) The director Commissioner of the Bureau of Behavioral Health, within the Department of Health and Human Resources ex officio, or his or her designee;

(6) The director of the Division of Rehabilitation Services, ex officio, or his or her designee;

(7) The director Commissioner of the Bureau of Medical Services, ex officio, or his or her designee;

(8) The director of the Office of Emergency Services, ex officio, or his or her designee;

(9) The executive director of the workers' compensation commission, ex officio, or his or her designee;

(10) Seven members appointed by the Governor to represent public and private health organizations or other disability coalitions or advisory groups; and

(11) Seven members appointed by the Governor who are either survivors of traumatic brain or spinal cord injury or family members of persons with traumatic brain or spinal cord injury.

(c) The citizen members shall be appointed by the Governor for terms of three years, except that of the members first appointed, two of the representatives of public and nonprofit private health organizations, disability coalitions or advisory groups and two of the representatives of survivors or family members of persons with traumatic brain or spinal cord injuries shall serve for terms of one year, two of the representatives of each of those respective groups shall serve for terms of two years and the remaining three representatives of each of those respective groups shall serve for terms of three years. All subsequent appointments shall be for three years. Members shall serve until the expiration of the term for which they have been appointed or until their successors have been appointed and qualified. In the event of a vacancy, the Governor shall appoint a qualified person to serve for the unexpired term. No member may serve more than two consecutive three-year terms. State officers or employees may be appointed to the board unless otherwise prohibited by law.

(d) In the event a board member fails to attend more than twenty-five percent of the scheduled meetings in a twelve-month period, the board may, after written notification to that member and the secretary of education and the arts, request in writing that the Governor remove the member and appoint a new member to serve his or her unexpired term.

(e) The board shall elect from its membership a chairperson, treasurer and secretary as well as any other officer as appropriate. The term of the chairperson is for two years in duration and he or she cannot serve more than two consecutive terms.


CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.


ARTICLE 3. HEALTH PROFESSIONALS STUDENT LOAN PROGRAMS.


§18C-3-1. Health Education Loan Program; establishment; administration; eligibility and loan cancellation; required report.

(a) For the purposes of this section, "Vice Chancellor for Administration" means the person employed pursuant to §18B-4-2 of this code.

(b) There is continued a special revolving fund account administered by the commission in the state Treasury to be known as the Health Education Student Loan Fund which shall be used to carry out the purposes of this section. The fund consists of the following:

(1) All funds on deposit in the medical student loan fund in the state Treasury or which are due or become due for deposit in the fund as obligations made under the previous enactment of this section;

(2) Those funds provided for medical education pursuant to the provisions of §18B-10-4 of this code;

(3) Appropriations provided by the Legislature;

(4) Repayment of any loans made under this section;

(5) Amounts provided by medical associations, hospitals or other medical provider organizations in this state, or by political subdivisions of the state, under an agreement which requires the recipient to practice his or her health profession in this state or in the political subdivision providing the funds for a predetermined period of time and in such capacity as set forth in the agreement; and

(6) Other amounts which may be available from external sources.

(c) Balances remaining in the fund at the end of the fiscal year do not expire or revert. All costs associated with administering this section shall be paid from the Health Education Student Loan Fund.

(d) The Vice Chancellor for Administration may utilize any funds in the Health Education Student Loan Fund for the purposes of the Medical Student Loan Program. The commission shall give priority for the loans to residents of this state, as defined by the commission. An individual is eligible for loan consideration if the individual meets the following conditions:

(1) Demonstrates financial need;

(2) Meets established academic standards;

(3) Is enrolled or accepted for enrollment at the West Virginia University School of Medicine, the Marshall University School of Medicine, or the West Virginia School of Osteopathic Medicine in a program leading to the degree of medical doctor (M.D.) or doctor of osteopathy (D.O.);

(4) Has not yet received one of the degrees provided in subdivision (3) of this subsection; and

(5) Is not in default of any previous student loan.

(e) At the end of each fiscal year, any individual who has received a medical student loan and who has rendered services as a medical doctor or a doctor of osteopathy in this state in a medically underserved area or in a medical specialty in which there is a shortage of physicians, as determined by the Division of Health Department of Health and Compliance at the time the loan was granted, may submit to the commission a notarized, sworn statement of service on a form provided for that purpose. Upon receipt of the statement the commission shall cancel $10,000 of the outstanding loan or loans for every full twelve consecutive calendar months of such service.

(f) No later than thirty days following the end of each fiscal year, the Vice Chancellor for Administration shall prepare and submit a report to the commission for inclusion in the statewide report card required under §18B-1D-8 of this code to be submitted to the Legislative Oversight Commission on Education Accountability established under §29A-3A-11 of this code. At a minimum, the report shall include the following information:

(1) The number of loans awarded;

(2) The total amount of the loans awarded;

(3) The amount of any unexpended moneys in the fund; and

(4) The rate of default during the previous fiscal year on the repayment of previously awarded loans.


CHAPTER 19. AGRICULTURE.


ARTICLE 11D. TRADITIONAL CHEESE PRODUCTION.


§19-11D-1. Legislative findings.

The Legislature finds that local production and sale of locally manufactured cheese products is a culturally significant tradition and that the preservation of historic methods of cheese production is in the public interest; that local cheese production is an important part of the economic livelihood of many families and small businesses in this state; and that the unique quality of home and farm-based cheese products cannot be duplicated using manufacturing and food production requirements enforced by local boards of health. Therefore, the Legislature finds that it is in the public interest to exempt certain local cheese production and local cheese products from regulations of the division of health Department of Health and Compliance related to food sanitation enforced by local boards of health, and to place the production of certain home and farm-based cheese products under the jurisdiction of the Department of Agriculture.


§19-11D-3. Exemption from regulatory control; authorizing rules by the commissioner of agriculture.

The manufacture of cheese products described in §19-11D-2 of this code is exempt from: (a) Pasteurization, packaging, labeling and all other health related requirements established in this code or rules promulgated by the division of health Department of Health and Compliance; and (b) regulatory control by the division of health Department of Health and Compliance and county or local health departments or sanitarians. Powers of the commissioner of agriculture set forth in §19-11A-10 of this code are applicable to the manufacturing of home and farm-based cheese products described in §19-11D-2 of this code. The commissioner of agriculture is authorized to promulgate rules pursuant to §29A-3-1 et seq. of this code, considering and promoting traditional methods of cheese production, while providing minimum health and sanitation standards necessary for the protection of the public, including standards for cleanliness, handling, and protection from contamination. Emergency rules for this purpose are authorized.


ARTICLE 12A. LAND DIVISION.


§19-12A-6. Appointment of farm management director; qualifications; powers and duties.

(a) The commission shall appoint a farm management director who, in addition to qualifications established by the commission, shall have owned, operated or managed a farm for at least five years within ten years immediately prior to being appointed. The farm management director is the chief executive officer of the commission and is responsible for conducting the operations of the farms. The director shall prepare an annual report of the farming operations, including a listing of all receipts and expenditures and shall present it to the commission and the Legislature at the end of each fiscal year.

(b) As authorized or directed by the commission, the director shall also:

(1) Prepare the annual budget request for the operation of the institutional farms and submit it to the commission for approval and submission to the secretary of the Department of Administration.

(2) Receive and approve all requisitions for farm supplies and equipment.

(3) Supervise the operation of all canneries and determine what foods are to be canned.

(4) Recruit and approve assistant farm managers to supervise each institutional farm.

(5) Implement all orders of the commission.

(6) Supervise all other employees of the commission.

(7) Transfer farm supplies, farm equipment, farm facilities, food stuffs and produce from one institutional farm to another to promote efficiency and improve farm management.

(c) With the approval of the commission, the farm management director may rent or lease additional land for farm use.

(d) By September 30, each year, each institution under the control of the division of health Department of Health and Compliance, the Department of Healthcare Facilities; the Department of Human Services and the Division of Corrections shall present to the farm management director a purchase order for its food requirements during the next fiscal year as determined by the institution. If, during the year, an institution finds that it needs other or additional food, milk, or commodities not included in its purchase order for the year, the institutional superintendent may forward a supplemental request to the farm management director, which order may be filled depending on availability. If institutional farms produce more food, milk and other commodities than can be sold to the institutions, the farm management director may sell the surplus to other state agencies willing to purchase. If any surplus remains after sales to other state agencies, the director may sell the surplus on the open market, or at the discretion of the director, turn over any surplus food products to appropriate public, nonprofit agencies upon application.

(e) On July 1, 1990, the division of health Department of Health and Compliance, the Department of Healthcare Facilities; the Department of Human Services and the Division of Corrections shall each transfer, by interdepartmental transfer, the sum of $200,000 to the farm management commission to be credited toward their purchase of food products from the commission. Such credits shall be treated as advance payments for food products purchased by these divisions pursuant to this section and such divisions shall not be required to make actual payments for food products until such credits have been completely expended.


ARTICLE 16A. WEST VIRGINIA PESTICIDE CONTROL ACT.


§19-16A-4. Powers and duties of the commissioner.

The commissioner of agriculture has the power and duty to carry out the provisions of this article and is authorized to:

(a) Delegate to employees of the Department of Agriculture the authority vested in the commissioner by virtue of the provisions of this article;

(b) Cooperate, receive grants in aid and enter into agreements with any other agency of the state, the United States Department of Agriculture, United States environmental protection agency or any other federal agency or any other state or agency thereof for the purpose of carrying out the provisions of this article;

(c) Contract for research projects;

(d) Require that pesticides used in this state are adequately tested and are safe for use under local conditions;

(e) Require that individuals who sell, store, dispose or apply pesticides are adequately trained and observe appropriate safety practices;

(f) Promulgate rules pursuant to chapter 29A of this code, including, but not limited to, the following:

(1) Licensing of businesses that sell, store, recommend for use, mix or apply pesticides;

(2) Registration of pesticides for manufacture, distribution, sale, storage or use in this state;

(3) Requiring reporting and recordkeeping related to licensing and registration;

(4) Establishing training, testing and standards for certification of commercial application, public application, registered technician and private applicator;

(5) Revoking, suspending or denying licenses, registration and certification or certificate or permits;

(6) Creating advisory committees made up of both pesticide industry representatives and consumers as considered necessary to implement this article;

(7) Establishing a fee structure for licenses, registration and certificate to defray the costs of implementing this article;

(8) Classifying or subclassifying certificate or certificates to be issued under this article. The classification may include, but not be limited to, agricultural, forest, ornamental, aquatic, right-of-way, industrial, institutional, structural or health-related pest control;

(9) Restricting or prohibiting the sale or use and disposal of any pesticide, pesticide container or residue which is extremely hazardous;

(10) Coordinating and supporting pesticide monitoring programs;

(11) Developing a program for registration of persons with health sensitivity to pesticide drift;

(12) Establishing guidelines and requirements, as deemed necessary, for licenses, certificate holders and permittees for the identification of pests and their methods of inspection of property to determine the presence of pests;

(13) Establishing procedures for reporting spills, accidents or incidents; and

(14) Such other rules necessary or convenient to carry out the purpose of this article;

(g) Design and conduct an appropriate educational program on the use of pesticides and the necessity for care when applying the same; and

(h) Only after consultation with the State Board of Education, division of human services for child welfare Department of Human Services, representatives from the environmental community, and representatives of school and daycare employees, by July 1, 1995, promulgate emergency rules, pursuant to §29A-3-1 et seq. of this code, establishing an integrated pest management program. The emergency and legislative rules for the program established in this subsection shall include, but are not limited to, the following:

(1) The use of least hazardous materials;

(2) That pesticides shall only be applied when monitoring indicates that pest infestations are present;

(3) That students and school and daycare employees, except school, Board of Education or daycare employees that are certified applicators, shall not be present during application and provide for appropriate reentry times, except that pesticides may be applied to a localized area of infestation when students or school and daycare employees are present if the infestation causes an imminent threat of bodily harm;

(4) A definition of pesticides; and

(5) A system for prior notification to parents and school and daycare employees.


CHAPTER 20. NATURAL RESOURCES.


ARTICLE 2. WILDLIFE RESOURCES.


§20-2-28. When licenses or permits not required.

Persons in the following categories are not required to obtain licenses or permits as indicated:

(a) Bona fide resident landowners or their resident children, or resident parents, or bona fide resident tenants of the land may hunt, trap or fish on their own land during open season in accordance with the laws and rules applying to the hunting, trapping and fishing without obtaining a license, unless the lands have been designated as a wildlife refuge or preserve.

(b) Any bona fide resident of this state who is totally blind may fish in this state without obtaining a fishing license. A written statement or certificate from a duly licensed physician of this state showing the resident to be totally blind shall serve in lieu of a fishing license and shall be carried on the person of the resident at all times while he or she is fishing in this state.

(c) All residents of West Virginia on active duty in the armed forces of the United States of America, while on leave or furlough, may hunt, trap or fish in season in West Virginia without obtaining a license. Leave or furlough papers shall serve in lieu of any license and shall be carried on the person at all times while trapping, hunting or fishing.

(d) In accordance with the provisions of §20-2-27 of this code, any resident sixty-five years of age or older before January 1, 2012, is not required to have a license to hunt, trap or fish during the legal seasons in West Virginia, but in lieu of the license the person shall at all times while hunting, trapping or fishing carry on his or her person a valid West Virginia driver's license or nondriver identification card issued by the Division of Motor Vehicles.

(e) Except as otherwise provided for in this section, residents of states that share river borders with the State of West Virginia who carry hunting or fishing licenses valid in that state may hunt or fish without obtaining licenses, but the hunting or fishing shall be confined to the fish and waterfowl of the river proper and not on its tributaries: Provided, That the state shall first enter into a reciprocal agreement with the director extending a like privilege of hunting and fishing to licensed residents of West Virginia without requiring the residents to obtain that state's hunting and fishing licenses.

(f) Residents of the State of Ohio who carry hunting or fishing licenses valid in that state may hunt or fish on the Ohio River or from the West Virginia banks of the river without obtaining licenses, but the hunting or fishing shall be confined to fish and waterfowl of the river proper and to points on West Virginia tributaries and embayments identified by the director: Provided, That the State of Ohio shall first enter into a reciprocal agreement with the director extending a like privilege of hunting and fishing from the Ohio banks of the river to licensed residents of West Virginia without requiring the residents to obtain Ohio hunting and fishing licenses.

(g) Any resident of West Virginia who was honorably discharged from the Armed Forces of the United States of America and who receives a veteran's pension based on total permanent service-connected disability as certified to by the Veterans Administration may hunt, trap or fish in this state without obtaining a license. The director shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code setting forth the procedure for the certification of the veteran, manner of applying for and receiving the certification and requirements as to identification while the veteran is hunting, trapping or fishing.

(h) Any disabled veteran who is a resident of West Virginia and who, as certified to by the Commissioner of Motor Vehicles, is eligible to be exempt from the payment of any fee on account of registration of any motor vehicle owned by the disabled veteran as provided in §17A-10-8 of this code shall be permitted to hunt, trap or fish in this state without obtaining a license. The director shall propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code setting forth the procedure for the certification of the disabled veteran, manner of applying for and receiving the certification and requirements as to identification while the disabled veteran is hunting, trapping or fishing.

(i) Any resident or inpatient in any state mental health, health or benevolent institution or facility may fish in this state, under proper supervision of the institution involved, without obtaining a fishing license. A written statement or certificate signed by the superintendent of the mental health, health or benevolent institution or facility in which the resident or inpatient, as the case may be, is institutionalized shall serve in lieu of a fishing license and shall be carried on the person of the resident or inpatient at all times while he or she is fishing in this state.

(j) Any resident who is developmentally disabled, as certified by a physician and the Director of the Division of Health Secretary of the Department of Human Resources, may fish in this state without obtaining a fishing license. As used in this section, "developmentally disabled" means a person with a severe, chronic disability which:

(1) Is attributable to a mental or physical impairment or a combination of mental and physical impairments;

(2) Is manifested before the person attains age twenty-two;(3) Results in substantial functional limitations in three or more of the following areas of major life activity:

(A) Self-care;

(B) Receptive and expressive language;

(C) Learning;

(D) Mobility;

(E) Self-direction;

(F) Capacity for independent living; and

(G) Economic self-sufficiency; and

(4) Reflects the person's need for a combination and sequence of care, treatment or supportive services which are of lifelong or extended duration and are individually planned and coordinated.

(k) A student eighteen years of age or younger receiving instruction in fly fishing in a public, private, parochial or Christian school in this state may fly fish in the state for catch and release only without obtaining a fishing license while under the supervision of an instructor authorized by the school.


CHAPTER 22. ENVIRONMENTAL RESOURCES.


ARTICLE 15. SOLID WASTE MANAGEMENT ACT.


§22-15-10. Prohibitions; permits required.


(a) Open dumps are prohibited and it is unlawful for any person to create, contribute to or operate an open dump or for any landowner to allow an open dump to exist on the landowner's property unless that open dump is under a compliance schedule approved by the director. Such compliance schedule shall contain an enforceable sequence of actions leading to compliance and shall not exceed two years. Open dumps operated prior to April 1, 1998, by a landowner or tenant for the disposal of solid waste generated by the landowner or tenant at his or her residence or farm are not a violation of this section if such open dump did not constitute a violation of law on January 1, 1998, and unauthorized dumps which were created by unknown persons do not constitute a violation of this section: Provided, That no person may contribute additional solid waste to any such dump after April 1, 1998, except that the owners of the land on which unauthorized dumps have been or are being made are not liable for such unauthorized dumping unless such landowners refuse to cooperate with the division in stopping such unauthorized dumping.

(b) It is unlawful for any person, unless the person holds a valid permit from the division to install, establish, construct, modify, operate or abandon any solid waste facility. All approved solid waste facilities shall be installed, established, constructed, modified, operated or abandoned in accordance with this article, plans, specifications, orders, instructions and rules in effect.

(c) Any permit issued under this article shall be issued in compliance with the requirements of this article, its rules and §22-11-1 et seq. of this code and the rules promulgated thereunder, so that only a single permit is required of a solid waste facility under these two articles. Each permit issued under this article shall have a fixed term not to exceed five years: Provided, That the director may administratively extend a permit beyond its five-year term if the approved solid waste facility is in compliance with this article, its rules and §22-11-1 et seq. of this code and the rules promulgated thereunder: Provided, however, That such administrative extension may not be for more than one year. Upon expiration of a permit, renewal permits may be issued in compliance with rules promulgated by the director.

(d) For existing solid waste facilities which formerly held division of health Department of Health and Compliance permits which expired by law and for which complete permit applications for new permits pursuant to this article were submitted as required by law, the division may enter an administrative order to govern solid waste activities at such facilities, which may include a compliance schedule, consistent with the requirements of the division's solid waste management rules, to be effective until final action is taken to issue or deny a permit for such facility pursuant to this article, or until further order of the division.

(e) No person may dispose in the state of any solid waste in a manner which endangers the environment or the public health, safety or welfare as determined by the director: Provided, That the carcasses of dead animals may be disposed of in any solid waste facility or in any other manner as provided for in this code. Upon request by the director, the commissioner of the bureau of public health shall provide technical advice concerning the disposal of solid waste or carcasses of dead animals within the state.

(f) A commercial solid waste facility shall not discriminate in favor of or against the receipt of any waste otherwise eligible for disposal at the facility based on its geographic origin.

(g) In addition to all the requirements of this article and the rules promulgated hereunder, a permit to construct a new commercial solid waste facility or to expand the spatial area of an existing facility, may not be issued unless the public service commission has granted a certificate of need, as provided in §24-2-1c of this code. If the director approves a permit or permit modification, the certificate of need shall become a part of the permit and all conditions contained in the certificate of need shall be conditions of the permit and may be enforced by the division in accordance with the provisions of this article. If the director approves a permit or permit modification, the certificate of need shall become a part of the permit and all conditions contained in the certificate of need shall be conditions of the permit and may be enforced by the division in accordance with the provisions of this article: Provided, That the provisions of this subsection do not apply to materials recovery facilities or mixed waste processing facilities as defined by §22-15-2 of this code, except within a thirty-five mile radius of a facility sited in a karst geological region and which has been permitted by the West Virginia Department of Environmental Protection as a mixed waste processing facility and has received a certificate of need by July 1, 2016.

(h) The director shall promulgate legislative rules pursuant to §29A-3-1 et seq. of this code which reflect the purposes as set forth in this section.

ARTICLE 28. COMMUNITY INFRASTRUCTURE INVESTMENT PROJECTS.


§22-28-4. Community infrastructure investment agreements; report to Joint Committee on Government and Finance.

(a) Municipal utilities and public service districts have the power and authority to enter into community infrastructure investment agreements with any person for the purpose of constructing new project facilities or substantially improving or expanding project facilities.

(b) Notwithstanding any other provision in this code to the contrary, the secretary shall have the power and the authority to review and approve all such community infrastructure investment agreements pursuant to this article.

(c) Each such agreement shall contain as a minimum the following terms and conditions to be performed by the parties thereto:

(1) The project facilities shall be engineered and constructed in accordance with the requirements for new construction established by the municipal utility or public service district;

(2) Proof or certification of the financial ability of the municipal utility or public service district to maintain and operate the public facilities;

(3) Certification that upon completion and activation of the project facility or improvements to the project facility, the title to the public facility shall be transferred without cost to the municipal utility or public service district;

(4) A finding that the construction of the new public facility, or the substantial improvement or expansion of an existing public facility, either: (i) Fosters economic growth by promoting commercial, industrial or residential development; and (ii) improves water quality or otherwise enables the affected territory to achieve compliance with any applicable state or federal health or environmental law;

(5) The municipal utility or public service district will receive or otherwise obtain without cost to the public all necessary rights-of-way for the operation of the public facility;

(6) The rates charged by the municipal utility or public service district to new customers to be served by the project facility shall be the rates in effect at the time of transfer of the project facility to the utility plus any additional cost of service borne by the municipal utility or public service district as a result of the project facility until such time as new rates may be finally enacted by the municipal utility or proposed by the public service district and approved by the Public Service Commission and the rates charged by the municipal utility or the public service district to existing customers shall not be impacted as a result of the obligation of the public service district or municipal utility pursuant to the community infrastructure investment agreement;

(7) Confirmation that the agreement does not violate any of the bond covenants imposed on the municipal utility or public service district;

(8) Proof that necessary permits, where applicable, have been obtained from the Division of Health Department of Health and Compliance and the Department of Environmental Protection;

(9) Evidence that the person responsible for the construction of or improvements to the public facility has provided funding to the municipal utility or public service district for the engagement of an engineer qualified to design and certify the structural integrity and capacity of the project facility;

(10) Proof that the person responsible for construction of or improvements to the public facility has obtained a performance bond payable to the municipal utility or public service district equal to the estimated cost of construction: Provided, That the form of the bond required by this section shall be approved by the secretary and may include, at the option of the secretary, surety bonding, collateral bonding (including cash and securities), establishment of an escrow account, letters of credit, performance bonding fund participation as established by the secretary, self-bonding or a combination of these methods; and

(11) Any other conditions that the secretary may determine to be relevant as established.

(d) Where the secretary has found that the community infrastructure investment agreement meets the requirements contained in this article, the secretary shall issue a certificate of appropriateness to the parties as evidence of such approval.

(e) Not later than thirty days prior to the issuance of a certificate of appropriateness for any community infrastructure investment project, the secretary shall first submit a report of the same to the Joint Committee on Government and Finance.


§22-28-5. Authority of the Department of Environmental Protection and Division of Health Department of Health and Compliance not affected.

Nothing contained in this article shall be construed to affect the authority of the Department of Environmental Protection pursuant to the provisions of this chapter, nor the authority of the Division of Health Department of Health and Compliance pursuant to the provisions of chapter 16 of this code. Facilities discharging into the Potomac River watershed and its tributaries shall be designed to achieve nutrient reductions, for both Nitrogen and Phosphorus, consistent with West Virginia's participation in the Chesapeake Bay Program upon implementation of the Chesapeake Bay standards by the secretary.


CHAPTER 22C. ENVIRONMENTAL RESOURCES; BOARDS, AUTHORITIES, COMMISSIONS AND COMPACTS.


ARTICLE 4. COUNTY AND REGIONAL SOLID WASTE AUTHORITIES.


§22C-4-10. Mandatory disposal; proof required; penalty imposed; requiring solid waste management board and the Public Service Commission to file report.

(a) Each person occupying a residence or operating a business establishment in this state shall either:

(1) Subscribe to and use a solid waste collection service and pay the fees established therefor; or

(2) Provide proper proof that said person properly disposes of solid waste at least once within every thirty-day period at approved solid waste facilities or in any other lawful manner. The Secretary of the Department of Environmental Protection shall promulgate rules pursuant to chapter 29A of this code regarding an approved method or methods of supplying such proper proof. A civil penalty of $150 may be assessed to the person not receiving solid waste collection services in addition to the unpaid fees for every year that a fee is not paid. Any person who violates the provisions of this section by not lawfully disposing of his or her solid waste or failing to provide proper proof that he or she lawfully disposes of his or her solid waste at least once a month is guilty of a misdemeanor. Upon conviction, he or she is subject to a fine of not less than $50 nor more than $1,000 or sentenced to perform not less than ten nor more than forty hours of community service, such as picking up litter, or both fined and sentenced to community service.

(b) The Solid Waste Management Board, in consultation and collaboration with the Public Service Commission, shall prepare and submit, no later than October 1, 1992, a report concerning the feasibility of implementing a mandatory fee for the collection and disposal of solid waste in West Virginia: Provided, That such plan shall consider such factors as affordability, impact on open dumping and other relevant matters. The report shall be submitted to the Governor, the President of the Senate and the Speaker of the House of Delegates.

(c) The Public Service Commission, in consultation and collaboration with the Division Department of Human Services, shall prepare and submit, no later than October 1, 1992, a report concerning the feasibility of reducing solid waste collection fees to individuals who directly pay such fees and who receive public assistance from state or federal government agencies and are therefore limited in their ability to afford to pay for solid waste disposal. This report shall consider the individual's health and income maintenance and other relevant matters. This report shall also include recommended procedures for individuals or households to qualify for and avail themselves of a reduction in fees. This report shall be submitted to the Governor, the President of the Senate and the Speaker of the House of Delegates.


CHAPTER 25. DIVISION OF CORRECTIONS.


ARTICLE 1. ORGANIZATION, INSTITUTIONS AND CORRECTIONS MANAGEMENT.


§25-1-3. Institutions managed by Commissioner of Corrections; certain institutions transferred to Department of Health and Human Resources Healthcare Facilities; establishment of work and study release units; contracting with certain entities for reentry and direct placement services; reports to Governor.

(a) The Commissioner of Corrections shall manage, direct, control and govern the following penal or correctional institutions and any others placed under his or her jurisdiction or control:

Mount Olive Correctional Complex;

Huttonsville Correctional Center;

Anthony Correctional Center;

Denmar Correctional Center;

Pruntytown Correctional Center;

Northern West Virginia Correctional Center;

St. Marys Correctional Center;

Lakin Correctional Center;

Ohio County Correctional Center;

Beckley Correctional Center;

Martinsburg Correctional Center;

Salem Correctional Center; and

Parkersburg Correctional Center.

(b) The Commissioner of Corrections may contract with the County Commission of McDowell County to house and incarcerate inmates at the Stevens Correctional Center consistent with all requirements and standards governing the Division of Corrections.

(c) Jurisdiction of and title to the West Virginia Children's Home at Elkins are hereby transferred to the Department of Health and Human Resources Healthcare Facilities, which is the custodian of all deeds and other muniments of title to the property and shall record those that are susceptible of recordation to be recorded in the proper offices. Notwithstanding any provision of this code to the contrary, the West Virginia Children's Home shall be managed and controlled by a superintendent appointed by the Commissioner of the Division of Human Services Secretary of the Department of Healthcare Facilities.

(d) The Commissioner of Corrections may establish work and study release units as extensions and subsidiaries of those state institutions under his or her control and authority. The work and study release units may be coeducational and shall be managed, directed and controlled as provided in this article.

(e) (1) The commissioner may contract with nonprofit or charitable entities including, but not limited to, nonprofit community mental health clinics, operating half-way houses or transitional housing facilities for the placement of persons in the commissioner's custody, whether confined or under parole supervision, as long as such facilities meet standards and criteria established by the commissioner.

(2) (A) The Commissioner of Corrections may direct that a person who is placed in a half-way house or transitional housing facility under this section make reimbursement to the state in the amount of a reasonable sum calculated to offset all or part of the costs of the placement.

(B) Prior to ordering the person to make the reimbursement, the commissioner, or his or her designee, shall consider the following:

(i) The person's ability to pay;

(ii) The nature and extent of the person's responsibilities to his or her dependents, if any;

(iii) The length of probable incarceration under the court's sentence; and

(iv) The effect, if any, that reimbursement might have on the person's rehabilitation.

(f) The Division of Corrections shall provide the number of persons placed in a half-way house or a transitional housing facility pursuant to subsection (e) of this section in its report made pursuant to §5-1-20 of this code, and shall describe its plans to use the authority provided under the provisions of subsection (e) of this section in furtherance of the duties and responsibilities imposed by this article.

(g) Any person employed by the Office of Public Institutions is a classified civil service employee within the limits contained in §29-6-2 of this code.


CHAPTER 27. BEHAVIORAL HEALTH.


ARTICLE 1. DEFINITIONS.

§27-1-1. Defined words and phrases.


The following words and phrases as used in this chapter have the following meaning unless the context clearly requires a different meaning.


"Addiction" means a maladaptive pattern of substance use leading to clinically significant impairment or distress as manifested by one or more of the following occurring within thirty days prior to the filing of the petition:

(A) Recurrent substance use resulting in a failure to fulfill major role obligations at work, school or home, including, but not limited to, repeated absences or poor work performance related to substance use; substance-related absences, suspensions or expulsions from school; or neglect of children or household;

(B) Recurrent use in situations in which it is physically hazardous, including, but not limited to, driving while intoxicated or operating a machine when impaired by substance use;

(C) Recurrent substance-related legal problems; or

(D) Continued use despite knowledge or having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance.

"Behavioral health facility" means any inpatient, residential or outpatient facility for the care and treatment of the mentally ill, intellectually disabled or addicted which is operated, by the West Virginia Department of Healthcare Facilities and includes state hospitals as defined in this article. The term also includes veterans administration hospitals, but does not include any regional jail, juvenile or adult correctional facility, or juvenile detention facility.

“Bureau” means the West Virginia Bureau for Behavioral Health.

“Chief executive officer” means the person in charge of administrating a state-operated treatment facility and has the authority to manage and administer the financial, business and personnel affairs of such facility. All other persons employed at the state-operated treatment facility are under the jurisdiction and authority of the administrator of the treatment facility who need not be a physician.

"Chief medical officer" means the physician responsible for medical programs within a behavioral health facility and includes the clinical director of a state hospital.

“Clinical Director” means the person who has the responsibility for decisions involving clinical and medical treatment of patients in a state-operated behavioral health facility. The clinical director must be a physician duly licensed to practice medicine in this state who has completed training in an accredited program of post-graduate education in psychiatry.  In any facility designated by the Secretary of the Department of Healthcare Facilities as a facility for individuals with an intellectual disability in which programs and services are designed primarily to provide education, training and rehabilitation rather than medical or psychiatric treatment, the duties and responsibilities, other than those directly related to medical treatment services, assigned to the clinical director by this chapter, are assigned to and become the responsibility of the administrator of that facility, or of a person with expertise in the field of intellectual disability. This person need not be a physician and shall be designated by the administrator.

“Commissioner” means the Commissioner of the West Virginia Bureau for Behavioral Health.

“Department means the West Virginia Department of Human Services. 

"Detained or taken into custody" where used in this chapter, shall permit detention for custody in a county facility which may be in the same building as the county jail if the said county facility:

(A) Meets the standards which the West Virginia Department of Health and Compliance shall prescribe; and

(B) Is approved for such use by the West Virginia Department of Health and Compliance; and

(C) Is inspected annually by the West Virginia Department of Health and Compliance.

"Incapacitated" means a level of intoxication at which an individual is incapable of physical or mental control of himself or herself, thus rendering him or her dangerous to himself or herself or others or unable to protect himself or herself from hazard.

"Inebriate" means a person over the age of eighteen years who is incapable or unfit to properly conduct himself or herself, or his or her affairs, or is dangerous to himself or herself or others, by reason of periodical, frequent or constant drunkenness, induced either by the use of alcoholic or other liquors, or of opium, morphine, or other narcotic or intoxicating or stupefying substance.

"Intellectual disability" means significantly subaverage intellectual functioning which manifests itself in a person during his or her developmental period and which is characterized by his or her inadequacy in adaptive behavior. Notwithstanding any provision to the contrary, if any service provision or reimbursement is affected by the changes in terminology adopted in the 2010 First Extraordinary Session of the Legislature, the terms "intellectual disability" or "individuals with an intellectual disability" shall assume their previous terminology. It is not the intent of the Legislature to expand the class of individuals affected by this terminology change.

"Judicial officer" in the context of the provisions of this and other chapters of this code dealing with disposition of a charge of public intoxication, means a municipal judge, a magistrate or any judge of a court of record in this state.

"Likely to cause serious harm" means an individual is exhibiting behaviors consistent with a medically recognized mental disorder or addiction, excluding, however, disorders that are manifested only through antisocial or illegal behavior and as a result of the mental disorder or addiction:

(A) The individual has inflicted or attempted to inflict bodily harm on another;

(B) The individual, by threat or action, has placed others in reasonable fear of physical harm to themselves;

(C) The individual, by action or inaction, presents a danger to himself or herself, or others in his or her care;

(D) The individual has threatened or attempted suicide or serious bodily harm to himself or herself; or

(E) The individual is behaving in a manner as to indicate that he or she is unable, without supervision and the assistance of others, to satisfy his or her need for nourishment, medical care, shelter or self-protection and safety so that there is a substantial likelihood that death, serious bodily injury, serious physical debilitation, serious mental debilitation or life-threatening disease will ensue unless adequate treatment is afforded.

(F) In making the "likely to cause serious harm" determination, judicial, medical, psychological and other evaluators and decision makers should utilize all available information, including psychosocial, medical, hospitalization and psychiatric information and including the circumstances of any previous commitments or convalescent or conditional releases that are relevant to a current situation, in addition to the individual's current overt behavior. The rules of evidence shall be followed in making the "likely to cause serious harm" determination except that hearsay evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.

"Mental illness" means a manifestation in a person of significantly impaired capacity to maintain acceptable levels of functioning in the areas of intellect, emotion and physical well- being.

"Physician" means a person licensed pursuant to the laws of this state to practice medicine or a medical officer of the government of the United States while in this state in the performance of his or her official duties.

"Psychologist" means any person licensed pursuant to the laws of this state to engage in the practice of psychology, or any other psychologist not a resident of this state who engages in the practice of psychology in this state and who holds a license or certificate to engage in the practice of psychology issued by another state with licensing or certification requirements comparable to the licensing requirements of this state, as may be determined by the State Board of Examiners of Psychologists.

"Psychiatrist" means a physician licensed pursuant the laws of this state to practice medicine who has completed training in an accredited program of post-graduate education in psychiatry.

"Resident of the state" means any person who has had an established residency in this state for at least one year, and a "resident of the county" is any person who has had an established residency in a county for at least sixty days.

“Secretary” means the Secretary of the West Virginia Department of Human Services.  Any reference in this chapter and this code to Director or Director of the Division of Health means the Secretary of the Department of Human Services.

"State hospital" means any hospital, center or institution, or part of any hospital, center or institution, established, maintained and operated by the Department of Healthcare Facilities, or by the Department of Healthcare Facilities. in conjunction with a political subdivision of the state, to provide inpatient or outpatient care and treatment for the mentally ill, intellectually disabled or addicted. The terms "hospital" and "state hospital" exclude correctional and regional jail facilities.

"Substance" means alcohol, controlled substances as defined in §60A-2- 204, §60A-2- 206, §60A-2- 208 and §60A-2- 210 of this code or anything consumed for its psychoactive effect whether or not designed for human consumption.


ARTICLE 2. BUREAU FOR BEHAVIORAL HEALTH.


§27-2-1. Statement of policy.

The purpose of this article is to improve the the standards of treatment of the mentally ill and intellectually disabled, encourage the further development of outpatient and diagnostic clinics, establish better research and training programs, and promote the development of behavioral health.


§27-2-2. Creation; composition.

Effective on the first day of July, 2018, there shall be a Bureau for Behavioral Health within the Department.  The bureau shall be under the immediate supervision of a commissioner, who is responsible for the exercise of duties and powers assigned the bureau in this chapter.


§27-2-3. Appointment of commissioner; qualifications; oath; compensation.

(a) There is created the position of commissioner. The commissioner shall:

(1) Be appointed by the Governor with advice and consent of the Senate;