H. B. 4026
(By Delegates Morgan, Swartzmiller, Givens,
Staggers, Hartman and Butcher)
[Introduced January 12, 2012; referred to the
Committee on Government Organization then the Judiciary.]
A BILL to repeal §30-1-15 of the Code of West Virginia, 1931, as amended; to amend and reenact §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and §30-1-14 of said code; and to amend said code by adding thereto a new section, designated §30-1-20, all relating to professional licensing boards; repealing antiquated, ineffective provisions; revising requirements for specific subject matter at orientation sessions; clarifying who may call a board meeting; establishing quorums; reporting violations; requiring boards to maintain a business office open to the public; authorizing boards to propose fees notwithstanding specific fees established in code; notifying licensees of proposal of fees in legislative rules; authorizing boards to levy fines; hiring administrative law judges; clarifying law governing hearings and administrative hearings; requiring board members to adhere to ethical standards for appointed officials; permitting boards to establish a process for modifying or waiving continuing education requirements or renewal fees for licensees in active duty military service; and requiring regulatory board reviews.
Be it enacted by the Legislature of West Virginia:
That §30-1-15 of the Code of West Virginia, 1931, as amended, be repealed; that §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and §30-1-14 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §30-1-20, all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-2a. Required orientation session.
(a) After Between April 1 and not later than the first day of December 31 of each year, the Auditor shall provide at least one orientation session on relevant state law and rules governing state boards. and commissions All state agencies shall cooperate with and assist in providing the orientation session if the Auditor requests.
(b) After the effective date of this section, All chairs or chief financial officers of state boards and commissions newly created by the Legislature shall attend an orientation session designed by the Auditor to inform the state boards and commissions of the duties and requirements imposed on state boards and commissions by state law and rules The chair or chief financial officer of the newly created board or commission shall attend an orientation session at the earliest possible date following the creation of the board. or commission
© The orientation session shall include a minimum of thirty minutes of instructional time dedicated to the statutory duty of boards to investigate and resolve complaints, including procedures for investigations, administrative hearings and remedies, due process protections, and the duty to provide public access to records of the disposition of complaints, as set forth in section five of this article.
(d) © Topics for the orientation session may include, but are not limited to, the statutory duty of boards to investigate and resolve complaints, including procedures for investigations, administrative hearings and remedies, and the duty to provide public access to records of the disposition of complaints, the official conduct of members, state budgeting and financial procedures, purchasing requirements, open meetings requirements, ethics, rule-making procedures, records management, annual reports and any other topics the Auditor determines to be essential in the fulfillment of the duties of the members of state boards and commissions are necessary.
(e) (d) The orientation session shall be is open to any member of new or existing boards and commissions and each board or commission may approve expense reimbursement for the attendance of one or more of its members. The chair or chief financial officer of each existing board or commission shall attend an orientation session within two years following the effective date of this section.
(f) (e) No later than December 31 of each year, the Auditor shall provide to the chairs of the Joint Standing Committee on Government Operations Organization a list of the names of board or commission members attending orientation sessions, together with the names of the boards and commissions represented and the orientation session or sessions offered by the Auditor during the previous year.
(g) (f) The Auditor may charge a registration fee for the orientation session to cover the cost of providing the orientation session. The fee may be paid from funds available to a board. or commission
(h) (g) Notwithstanding the member’s normal rate of compensation for serving on a board, a member attending the an orientation session may be reimbursed for necessary and actual expenses as long as the member attends the complete orientation session.
(I) (h) Ex officio members who are elected or appointed state officers or employees and members of boards or commissions that have purely advisory functions with respect to a department or agency of the state are exempt from the requirements of this section.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a) Every Each board referred to in this chapter shall hold at least one meeting each year, at such time and place as it may prescribe by rule, for the examination of applicants who desire to practice their respective professions or occupations in this state and to transact any other business which may legally come before it. The board may hold additional meetings as may be necessary which shall be called either by the chair secretary at the direction of the president or upon the written request of any three a majority of the board members. A simple majority of the members of the constituent membership serving on the board at a given time constitutes is a quorum for the transaction of its business.
(b) The Each board is authorized to may compel the attendance of witnesses, to issue subpoenas and subpoenas duces tecum, to conduct investigations, and hire an investigator and to take testimony and other evidence concerning any matter within its jurisdiction. The president chair and secretary of the board are authorized to may administer oaths for these purposes.
© Every Each board referred to in this chapter has a duty to shall investigate and resolve complaints which it receives and, shall, within six months of the complaint being filed, send a status report to the party filing the complaint by certified mail with a signed return receipt. and Within one year of the status report’s return receipt date, the board shall issue a final ruling unless the party filing the complaint and the board agree, in writing, to extend the time for the final ruling.
(d) Every Each board shall maintain a business office open to the public and provide public access to the record of its public records, including the disposition of the complaints which it receives in accordance with the provisions of chapter twenty-nine-b of this code.
(e) Every Each board has a duty to report violations of individual practice acts contained in this chapter to the board by which the individual may be licensed and shall do so in a timely manner upon receiving notice of such violations. Every Each person licensed or registered by a board has a duty to report to the board which licenses or registers him or her a known or observed violation of the practice act or the board's rules by any other person licensed or registered by the same board and shall do so in a timely manner. Law-enforcement agencies or their personnel and courts shall report in a timely manner within ten days to the appropriate board any violations of individual practice acts by any individual. Any person who reports or provides information in good faith is not subject to civil damages.
(e) (f) Whenever a board referred to in this chapter obtains information that a person subject to its authority has engaged in, is engaging in or is about to engage in any act which constitutes or will constitute a violation of the provisions of this chapter which are administered and enforced by that board, it may apply to the circuit court for an order enjoining the act. Upon a showing that the person has engaged, is engaging or is about to engage in any such act, the court shall order an injunction, restraining order or other order as the court may deem appropriate.
§30-1-6. Application for license or registration; examination fee; prohibiting discrimination.
(a) Every Each applicant for license or registration an authorization to practice under the provisions of this chapter shall apply for the license or registration in writing to the proper board and shall transmit with his or her application an examination fee which the board is authorized to charge for an examination or investigation into the applicant's qualifications to practice the authorized fees.
(b) Each board referred to in this chapter is authorized to may establish by rule a deadline for application for examination. which shall be no less than ten nor more than ninety days prior to the date of the examination
© Boards Notwithstanding specific fees established in the articles which govern the licensing boards in this chapter, each board may set fees by legislative rule fees relating to the licensing or registering of individuals, which shall be sufficient to enable the boards to effectively carry out effectively their responsibilities of licensure or registration of the authorization to practice and discipline of the individuals subject to their authority. Provided, That when any When a board proposes to promulgate a rule regarding fees, for licensing or registration, that the board shall notify its membership of the proposed rule by:
(1) Mailing a copy of the proposed rule to the membership its licensees at the time that the proposed rule is filed with the Secretary of State; for publication in the state register in accordance with section five, article three, chapter twenty-nine-a of this code. or
(2) Posting the proposed rule on its website and notifying its licensees of the website posting at least thirty days before the proposed rule is filed with the Secretary of State, by:
(A) Mailing a postcard to its licensees;
(B) Emailing a notice to its licensees who have an email address on file with the board; or
© Placing a notice in its newsletter.
(d) In addition to any other information required, the applicant’s social security number shall must be recorded on the application and will be redacted from any copies provided to the public.
(e) No board may discriminate against any applicant because of political or religious opinion or affiliation, marital status, race, color, gender, creed, age, national origin, disability or other protected group status.
(f) Any A board may deny the application for licensure or registration an authorization to practice of an applicant whose license or registration authorization to practice in any other state, territory, jurisdiction or foreign nation has been revoked by the licensing authority. thereof The application may be denied by a board without a hearing unless the applicant requests a hearing within thirty days of the denial. Any hearing must be conducted pursuant to the provisions of section eight of this article or provisions contained in the rules of the board.
§30-1-8. Denial, suspension or revocation of a license or registration; probation; proceedings; effect of suspension or revocation; authority to hire hearing examiner; transcript; report; judicial review.
(a) Every Each board referred to in this chapter may suspend or revoke the license authorization to practice of any person who has been convicted of a felony or who has been found to have engaged in conduct, practices or acts constituting professional negligence or a willful departure from accepted standards of professional conduct. Where any person has been convicted of a felony or has been found to have engaged in such conduct, practices or acts, every the board referred to in this chapter may enter into consent decrees, to reprimand, to enter into probation orders, to levy fines not to exceed one thousand dollars per day per violation or any of these, singly or in combination. Each board may also assess administrative costs. Any costs which are Assessed shall be costs are placed in the special account of the board and any fines which is levied fines shall be are deposited in the State Treasury's General Revenue Fund.
(b) For purposes of this section, the word "felony" means a felony or crime punishable as a felony under the laws of this state, any other state or the United States.
© Every Each board referred to in this chapter may promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code to delineate conduct, practices or acts which, in the judgment of the board, constitute professional negligence, a willful departure from accepted standards of professional conduct or which may render an individual unqualified or unfit for licensure, registration or other an authorization to practice.
(d) Every Each board referred to in this chapter may revoke the license or registration an authorization to practice of an individual licensed or otherwise lawfully practicing within this state whose license or registration authorization to practice in any other state, territory, jurisdiction or foreign nation has been revoked by the licensing authority. thereof
(e) Notwithstanding any other provision of law to the contrary, no certificate, license, registration or authority authorization to practice issued under the provisions of this chapter may be suspended or revoked without a prior hearing before the board or court which issued the certificate, license, registration or authority, except:
(1) A board is authorized to may suspend or revoke a certificate, license, registration or authority an authorization to practice prior to a hearing if the person’s continuation in practice constitutes an immediate danger to the public; or
(2) After due diligence, If a board, after reviewing all reasonably available relevant information, cannot locate a person licensed authorized to practice under the provisions of this chapter within sixty days of a complaint being filed against the licensee person, then the board may suspend the license, certificate, registration or authority authorization to practice of the person without holding a hearing. After due diligence, If a board, still after reviewing all reasonably available relevant information, cannot locate the person licensed authorized to practice under the provisions of this chapter thirty days after the suspension of the person’s license, certificate, registration or authority, then authorization to practice, the board may revoke the license, certificate, registration or authority authorization to practice of the person without holding a hearing.
(f) In all proceedings before a board or court for the suspension or revocation of any certificate, license, registration or authority the authorization to practice issued under the provisions of this chapter, a statement of the charges against the holder of the certificate, license, registration or authority authorization to practice and a notice of the time and place of hearing shall be served upon the person as a notice is served under section one, article two, chapter fifty-six of this code at least thirty days prior to the hearing. and He or she may appear with witnesses and be heard in person, by counsel, or both. The board may take oral or written proof, for or against the accused holder of the authorization to practice, as it may consider advisable. If upon hearing the board finds that the charges are true, it may suspend or revoke the certificate, license, registration or authority and suspension or revocation shall take from the person all rights and privileges acquired thereby authorization to practice.
(g) The board may conduct the hearing or elect to have a hearing examiner or an administrative law judge conduct the hearing. If the hearing is conducted by a hearing examiner or an administrative law judge:
(1) The hearing examiner or administrative law judge shall be licensed to practice law in this state and shall conform to the Code of Conduct for Administrative Law Judges as set forth by the Ethics Commission in legislative rule;
(2) At the conclusion of a hearing, the hearing examiner or administrative law judge shall prepare a proposed written order containing recommended findings of fact and conclusions of law and may include recommended disciplinary sanctions if the board so directs;
(3) The board may accept, reject, modify or amend the recommendations of the hearing examiner or administrative law judge; and
(4) If the board rejects, modifies or amends the recommendations, the board shall state in the order a reasoned, articulate justification based on the record for the rejection, modification or amendment.
(g) (h) Pursuant to the provisions of section one, article five, chapter twenty-nine-a of this code, informal disposition may also be made by the board of any contested case by stipulation, agreed settlement, consent order or default. Further, The board may suspend its decision and place a licensee found by the board to be in violation of the applicable practice act or rules of the board on probation.
(h) (I) Any person denied a license, certificate, registration or authority an authorization to practice who believes the denial was in violation of this article or the article under which the license, certificate, registration or authority licensee is authorized, shall be is entitled to a hearing on the action. denying the license, certificate, registration or authority Hearings under this subsection are in accordance with the provisions for hearings which are set forth in this section.
(I) (j) A stenographic report of each proceeding on the denial, suspension or revocation of a certificate, license, registration or authority shall be made at the expense of the board and a transcript of the hearing retained in its files. The board shall make a written report of its findings which shall constitute is part of the record.
(j) (k) All hearings and administrative proceedings under the provisions of this section are held in accordance with the provisions of article five, chapter twenty-nine-a of this code, and are subject to review by the Supreme Court of Appeals.
(k) (l) On or before the first day of July, two thousand one, every Each board referred to in this chapter shall adopt procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code which shall specifying a procedure for the investigation and resolution of all complaints against persons licensed under this chapter. The proposed legislative rules relating only to complaint procedures or contested case hearing procedures required by the prior enactment of this subsection shall be redesignated as procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code. Each board shall file the procedural rules required by this subsection by the thirty-first day of January, two thousand one. The public hearing or public comment period conducted for the proposed legislative rules shall serve as the public hearing or public comment period required by section five, article three, chapter twenty-nine-a of this code.
§30-1-11. Compensation of members; expenses; adherence to ethical standards.
(a) Each member of every board in this chapter is entitled to receive compensation for attending official meetings or engaging in official duties not to exceed the amount in the same amount as is paid to members of the Legislature for their interim duties as recommended by the Citizens Legislative Compensation Commission and authorized by law. A board member may not receive compensation for travel days that are not on the same day as the official meeting or for days when not engaged in official duties.
(b) The limitations contained in this section do not apply if they these conflict with provisions of this chapter relating to a particular board and enacted after January 1, 1995.
© A board may reimburse actual and necessary expenses incurred for each day or portion of a day engaged in the discharge of official duties in a manner consistent with guidelines of the Travel Management Office of the Department of Administration.
(d) No member of any board in this chapter may receive compensation as an employee of the board.
(e) Each member of every board in this chapter shall adhere to the ethical standards for appointed officials as set forth in section five, article two, chapter six-b of this code.
§30-1-14. Remission of certain fees Modifying or waiving continuing education requirements or renewal fees for persons in active duty military service.
Every board of examination or registration referred to in this chapter is hereby authorized, under such rules and regulations as may be adopted by each board, to remit all annual license or annual registration fees required to be paid by any licensee or registrant under its supervision during such time as such licensee or registrant is serving with the Armed Forces of the United States of America, and to retain the name of such licensee or registrant in good standing on the roster of said board during said time.
Each board in this chapter may establish and implement processes for modifying or waiving continuing education requirements or renewal fees for the renewal of an authorization to practice for the period of time during which a person is engaged in active duty military service.
§30-1-20. Regulatory board review.
Each board is subject to a regulatory board review pursuant to the provisions of article ten, chapter four of this code.
NOTE: The purpose of this bill is to repeal antiquated provisions of statutes governing licensing boards; to revise orientation session requirements; to establish criteria for a quorum; to clarify who may call a board meeting; to clarify the issuance of cease and desist notices; to require boards to maintain business hours open to the public; to authorize boards to propose fees and provide notice of proposed fees to licensees, to levy fines and to hire administrative law judges or hearing examiners; to clarify law governing hearings and the reporting of violations; to require boards to adhere to ethical standards for appointed officials; to permit boards to establish a process for waiving or modifying continuing education requirements or renewal fees for licensees in active military service; and to require regulatory board reviews.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
S30-1-20 is new; therefore, it has been completely underscored.