COMMITTEE SUBSTITUTE
FOR
H. B. 4167
(By Delegates
Miley, Wooton, Barker, Moore,
Shook, Ferro, Ellem, Schoen and Sobonya
)
(Originating in the Committee on Finance)
[February 25, 2010]
A BILL to
amend and reenact §17C-5A-3 of the Code of West Virginia,
1931, as amended, relating to creation of a special revenue
account, known as the Department of Health and Human Resources
Safety and Treatment Fund; making a one-time transfer of
moneys into the fund; providing rule-making authority; and
control and use of the fund by the agency.
Be it enacted by the Legislature of West Virginia:
That §17C-5A-3 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5A. ADMINISTRATIVE PROCEDURE 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 shall
propose a legislative rule or rules
for promulgation in accordance with the provisions of chapter
twenty-nine-a of this code establishing a administer a comprehensive safety and treatment program for persons whose
licenses have been revoked under the provisions of this article or
section seven, article five of this chapter or subsection (6),
section five, article three, chapter seventeen-b 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 may
establish standards whereby the division 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)
(1) The Department of Health and Human Resources, Division
of Alcoholism and Drug Abuse 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
section seven
, article five of this chapter or subsection (6),
section five, article three, chapter seventeen-b 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 Safety and Treatment Fund. The account shall be
administered by the Secretary of the Department of Health and Human
Resources 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 Safety and Treatment Fund.
(2) The Department of Health and Human Resources shall
establish a fee by legislative rule, proposed pursuant to article
three, chapter twenty-nine-a of this code, to be collected from
each offender enrolled in the safety and treatment program;
(e) 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. subdivision (3) of this subsection. Program providers
shall remit to the Department of Health and Human Resources a
portion of the fee collected, which shall be deposited by the
Secretary of the Department of Health and Human Resources into the
Department of Health and Human Resources Safety and Treatment Fund
.
The Department of Health and Human Resources shall reimburse
enrollment fees to program providers for each eligible indigent
offender.
(3) The Department of Health and Human Resources shall
establish by legislative rule, proposed pursuant to article three,
chapter twenty-nine-a of this code, criteria to determine the
eligibility for the payment of safety and treatment services for
indigent offenders. The rule shall include, but is not limited to,
the development of a criteria for determining eligibility;
promulgation of application forms; establishment of procedures for
the review of applications; and the establishment of a mechanism
for the payment for safety and training services for eligible
offenders.
(4) (f) On or before January 15 of each year, the Secretary of
the Department of Health and Human Resources shall report to the
Legislature on:
(A) (1) The total number of offenders participating in the
safety and treatment program during the prior year;
(B) (2) The total number of indigent offenders participating
in the safety and treatment program during the prior year;
(C) (3) The total number of program providers during the prior
year; and
(D) (4) The total amount of reimbursements paid to program
provider during the prior year.
(5) (g) The commissioner 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 section seven,
article five of this chapter or subsection (6), section five,
article three, chapter seventeen-b of this code which shall include
successful completion of the educational, treatment or
rehabilitation program, subject to the following:
(A) (1) When the period of revocation is six months, the
license to operate a motor vehicle in this State shall may not be
reissued until: (i)(A) At least ninety days have elapsed from the
date of the initial revocation, during which time the revocation
was actually in effect; (ii)(B) the offender has successfully
completed the program; (iii)(C) all costs of the program and
administration have been paid; and (iv)(D) all costs assessed as a
result of a revocation hearing have been paid.
(B) (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 shall may not be reissued until: (i) (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; (ii) (B) the offender has successfully completed the
program; (iii) (C) all costs of the program and administration have
been paid; and (iv) (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 section seven, article five of
this chapter for a first offense is not eligible to reduce the
revocation period by completing the safety and treatment program.
(C) (3) When the period of revocation is for life, the license
to operate a motor vehicle in this State shall may not be reissued
until: (i) (A) At least ten years have elapsed from the date of the
initial revocation, during which time the revocation was actually
in effect; (ii) (B) the offender has successfully completed the
program; (iii) (C) all costs of the program and administration have
been paid; and (iv) (D) all costs assessed as a result of a
revocation hearing have been paid.
(D) (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.
(d) (h) (1) The Department of Health and Human Resources,
Division of Alcoholism and Drug Abuse 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 subsection (n), section two, article five-a of this chapter. 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 shall 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.
(e) (i) A required component of the rehabilitation 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 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 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 shall promulgate a rule for legislative approval in
accordance with article three, chapter twenty-nine-a 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
section fifteen, article three, chapter twenty-nine-a of this code.