H. B. 2817
(By Delegates Martin, Michael, Dempsey, Smith, Preece,
McGraw and Facemyer)
(Originating in the Committee on Government Organization)
[March 31, 1993]
A BILL to repeal sections eight and fifteen, article five,
chapter nine of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to repeal article five-j,
chapter twenty of said code; to repeal articles four and
five and six through eleven, chapter twenty-six; to amend
and reenact articles one and three of said chapter; to amend
said chapter by adding thereto a new article, designated
article two; to repeal sections three, four and ten, article
one-a, chapter twenty-seven of said code; to repeal article
fifteen, chapter twenty-nine of said code; to amend and
reenact sections one and two, article one, chapter nine; to
amend and reenact article two, chapter nine; to further
amend chapter nine by adding thereto a new article,
designated article six-a; to amend and reenact sections one
and four, article seven, chapter nine; to amend chapter
sixteen by adding thereto a new article, designated article
twenty-seven-a; to amend and reenact sections two and nine,
article one-a, and section one, article two, all of chapter
twenty-seven; to amend and reenact article fourteen and
section one, article twenty, chapter twenty-nine, all
relating to the reorganization of the department of health
and human resources; deleting obsolete provisions relating
to the department of human services; deleting obsolete
provisions relating to the state commission on mental
retardation; legislative purpose; definitions; abolishing
department of human services; continuing the department of
health and human resources; secretary to be administrative
head of department; powers of the secretary; organization of
the department; transferring statutory powers and duties of
the commissioner of human services and the director of the
division of health to the secretary with authority to assume
those powers and duties to terminate of the first day of
July, one thousand nine hundred ninety-five; authorizing
creation of bureau of family assistance; powers and duties
of commissioner of bureau of family assistance; authorizing
creation of bureau of community support; powers and duties
of commissioner of bureau of community support; authorizing
the creation of bureau of public health; powers and duties
of commissioner of bureau of public health; authorizing the
creation of bureau of administration and finance; powers and
duties of commissioner of bureau of administration and
finance; termination date of bureaus established by the
secretary; disposition of moneys received by commissioner of
bureau of administration and finance; continuation of health
facility licensing account; continuation of hospital
services revenue account; delineation of power to conductinvestigations and hearings, administer oaths, subpoena
witnesses, etc.; authorizing the state to participate in
federal work incentive program; development of information
and referral services; acceptance of federal-state
assistance and federal assistance; delineation of
responsibility and powers of the department regarding public
assistance programs; development of caseload standards
committee; authorizing creation of office of inspector
general; continuation of medicaid fraud control unit;
reenacting a medical waste act for proper disposal of
infectious and noninfectious medical waste; repealing
obsolete provisions relating to state benevolent
institutions and delineating state acute care and emergency
hospitals and state extended care facilities; transferring
the responsibility for mental health and state-operated
treatment facilities to the secretary of department of
health and human resources; creating an older west
virginians act and delineating the responsibilities of the
state office of aging; creating a state advisory commission
on aging; conforming the membership of women's commission to
departmental structure.
Be it enacted by the Legislature of West Virginia:
That sections eight and fifteen, article five, chapter nine,
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be repealed; that article five-j, chapter
twenty be repealed; that articles four and five and six through
eleven, chapter twenty-six, be repealed; that articles one and
three of said chapter be amended and reenacted; that said chapterbe further amended by adding thereto a new article, designated
article two; that sections three, four and ten, article one-a,
chapter twenty-seven be repealed; that article fifteen, chapter
twenty-nine be repealed; that sections one and two, article one;
and article two, chapter nine be amended and reenacted; that said
chapter be further amended by adding thereto a new article,
designated article six-a; that sections one and four, article
seven of said chapter be amended and reenacted; that chapter
sixteen be amended by adding thereto a new article, designated
article twenty-seven-a; that sections two and nine, article
one-a; and section one, article two of chapter twenty-seven be
amended and reenacted; that article fourteen and section one,
article twenty of chapter twenty-nine be amended and reenacted,
all to read as follows:
CHAPTER 9. HEALTH AND HUMAN RESOURCES.
ARTICLE 1. LEGISLATIVE PURPOSE AND DEFINITIONS.
§9-1-1. Legislative purpose.
The Legislature in enacting this chapter intends to continue
on a reorganized basis welfare assistance programs heretofore
administered by the state department of welfare and county
councils to the end that residents of the State who are subject
to the recurring misfortunes of life may continue to have such
aid and encouragement as the county alone, the State alone or the
State in cooperation with the federal government may provide and
continuing the programs and services provided under the
department and human resources intends:
(1) To enable people to realize the highest possible quality
of life with dignity and without discrimination;
(2) To promote and provide temporary support and resources
to enable people to attain maximum possible self-sufficiency and
self-esteem;
(3) To protect and assist, through both economic and social
support, those who are unable to provide for themselves or to
assure themselves of basic care, rights and opportunities;
(4) To enable families to provide their children with
healthful, nurturing environments, through which the children can
reach their full potentials;
(5) To enable people to lead healthy lives, through health
promotion, high-quality, accessible and affordable health care,
and a healthy environment;
(6) To provide advocacy and responsible services to
children, women, senior citizens, minorities and those citizens
with mental illness or disabilities;
(7) To promote equality in all aspects of life without
regard to race, sex, age, national origin, ancestry, religion or
disability;
(8) To assure fiscal integrity, accountability and efficient
administration of department funds; and
(9) To deliver mandated services in a cost-effective,
efficient and coordinated manner to all beneficiaries.
§9-1-2. Definitions.
The following words and terms when used in this chapter
shall have the meanings hereafter ascribed to them unless the
context clearly indicates a different meaning:
(a) The term "department" shall mean means the state
department of welfare health and human resources.
(b) The term "commissioner" "secretary" shall mean means the
commissioner secretary of welfare health and human resources.
(c) The term "federal-state assistance" shall mean means and
include includes (1) 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, as those
subchapters have heretofore been and may hereafter be amended,
supplemented and revised by acts of Congress, and as those
subchapters so amended, supplemented and revised have heretofore
been and may hereafter be supplemented by valid rules and
regulations promulgated by authorized federal agents and
agencies, and as those subchapters so amended, supplemented and
revised have heretofore been and may hereafter be supplemented by
rules and regulations promulgated by the state department of
welfare health and human resources, which department rules and
regulations shall be consistent with federal laws, rules and
regulations, but not inconsistent with state law, and (2) 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
state department of welfare health and human resources to
recipients of any form of aid, care, assistance and services to
persons designated or referred to in (1) of this definition and
to recipients of state assistance, including by way of
illustration, surplus food and food stamps, which Congress hasauthorized the secretary of agriculture of the United States to
distribute to needy persons.
(d) The term "federal assistance" shall mean means and
include all includes any 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,
any act of Congress for distribution through the state department
of welfare health and human resources, the cost of which is paid
entirely out of federal appropriations.
(e) The term "state assistance" shall mean means and include
includes 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, which are
authorized by, and who are authorized to receive the same under
and by virtue of, department rules and regulations.
(f) The term "public assistance" or "welfare assistance"
shall mean means the three classes of assistance administered by
the department, namely: Federal-state assistance, federal
assistance and state assistance.
(g) The term "indigent person" shall mean means any person
who is domiciled in this state and who is actually in need as
defined by department rules and regulations and has not
sufficient income or other resources to provide for such need as
determined by the department.
(h) The term "domiciled in this state" shall mean 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. Thedepartment may by rules and regulations supplement the foregoing
definition of the term "domiciled in this state," but not in such
a manner as would be inconsistent with federal laws, rules and
regulations applicable to and governing federal-state assistance.
(i) The term "medical services" shall mean 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; such
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 such persons.
(j) The term "general relief" shall mean 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.
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES; POWERS,
DUTIES AND RESPONSIBILITIES GENERALLY.
§9-2-1. Continuation of department of health and human
resources.
The department of health and human resources created
pursuant to the provisions of section two, article one, chapter
five-f of this code, is hereby continued. The department shall
be organized as provided and authorized by this chapter and shall
have those powers and duties respecting the administration of the
public assistance programs as authorized, granted and imposed by
this chapter and elsewhere by law.
§9-2-2. Department of human services abolished; department of
health and human resources to administer chapter.
The state department of welfare, first created as the state
department of public assistance by chapter one, acts of
the Legislature, first extraordinary session, one
thousand nine hundred thirty-six, and later reconstituted as the
state department of welfare by chapter one hundred ten, acts of
the Legislature, regular session, one thousand nine hundred
sixty-one and reconstituted as the department of human services
by chapter seventy-eight, acts of the Legislature,
regular session, one thousand nine hundred
eighty-three, is hereby abolished and the department of
health and human resources created pursuant to the
provisions of section two, article one, chapter five-f of this
code shall have sole responsibility for the administration of
this chapter. Except where context clearly indicates otherwise,
all references in this code to the department of welfare or the
department or division of human services shall be
construed to mean the department of health and human resources.
All references to the commissioner of the department of welfare
or the commissioner of the department or division of human
services shall be construed to mean the secretary of the
department of health and human resources, except that after the
first day of July, one thousand nine hundred ninety-five, the
commissioner of the division of human services shall have such
power, duty and authority as is vested in the commissioner
pursuant to the provisions of this chapter and chapter forty-nineof this code.
§9-2-3. Secretary to be administrative head of department.
The chief executive officer and administrative head of the
department shall be the secretary of the department of health and
human resources. The secretary shall be appointed by the
governor, with the advice and consent of the senate, for a term
not exceeding the term of the governor, and shall serve at the
will and pleasure of the governor. The annual compensation of
the secretary shall be as specified in section three, article
one, chapter five-f of this code.
Before entering upon the duties of the office, the secretary
shall take and subscribe to the oath of office prescribed by
section five, article four of the state constitution and shall
give bond as required pursuant to the provisions of section
three, article one, chapter five-f of this code.
§9-2-4. Powers of the 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, in chapter five-f of this code, and elsewhere by law,
shall have the power, duty and authority:
(1) Upon the effective date of this section, and
notwithstanding any other provision of this code, to have all
those powers and duties vested in the former office of
commissioner of human services pursuant to the provisions of
section six of this article and chapter forty-nine of this code,
and the former office of director of the division of healthpursuant to the provisions of chapter sixteen of this code:
Provided,
That the authority granted by this subsection shall
expire on the first day of July, one thousand nine hundred
ninety-five.
(2) Delegate to commissioner of the bureau of family
assistance, the commissioner of the bureau of community support,
the commissioner of the bureau of public health, the commissioner
of the bureau of administration and finance or to other personnel
of the department any or all powers and duties vested in the
secretary, pursuant to this section or other provision of code,
including but not limited to the power and authority to sign
contracts and agreements, but the secretary shall remain
responsible therefor:
Provided,
That any delegation of powers
pursuant to this subdivision related to programs and services
required by this code shall identify the programs delegated with
specific references to the statute authorizing the program or
service delegated, and shall be in writing and signed by the
secretary.
(3) Develop and implement goals, objectives, policies and
plans that are necessary or desirable to assure effective,
efficient service delivery and to maximize staff resources and
productivity.
(4) Establish such task forces or committees as may in his
or her judgment be necessary or desirable to advise the
department and the secretary with respect to programs
administered by the department or any phase thereof:
Provided,
That the secretary shall maintain membership lists and meeting
records of such task forces or committees, which shall beavailable upon request for public review.
(5) Undertake periodic reviews of all department programs
and services required pursuant to this code or otherwise provided
to identify obsolete or outdated entities or functions, to
determine the feasibility of cost reductions, to streamline
operations and to improve efficiency in program management and
service delivery.
(6) Exercise all powers related to mentally ill persons
heretofore granted to the commissioner of the department of
mental health and the director of health pursuant to chapter
twenty-seven of this code.
(7) Execute and administer programs for specialized
populations, including but not limited to, women, children,
persons with physical or developmental disabilities, and senior
citizens.
(8) Promulgate, according to the provisions of chapter
twenty-nine-a, such rules and regulations as are or shall be
required under this chapter or elsewhere in law to implement and
administer departmental programs, functions or responsibilities.
(9) Make an annual report to the governor and Legislature
concerning the conduct of the department of health and human
resources, including proposals for legislation. The secretary
shall include in the annual report a plan for expenditures
detailing the amount of funds to be expended for specific
programs and services, the amount of services to be provided, and
the number of persons expected to be served. In addition, the
report shall qualify unmet needs and the funds needed to address
that need. The plan shall be available to the Legislature notlater than the third day of the regular Legislative session each
year.
§9-2-5. Organization of the department.
Within limits of state appropriations and federal grants and
subject to the provisions of state and federal laws, rules and
regulations, the secretary shall organize the department and
departmental programs into such bureaus, offices, divisions,
agencies and other administrative units, and, consistent with the
requirements of article six, chapter twenty-nine of this code,
shall appoint and employ such deputies, commissioners,
administrators, directors, assistants and employees, as may in
his or her judgment be necessary or desirable to carry out fully
and in an orderly, efficient and economical manner the powers,
duties and responsibilities of the department and of the office:
Provided,
That salaries for the commissioner of the bureau of
family assistance, the commissioner of the bureau of community
support, the commissioner of the bureau of public health and the
commissioner of the bureau of administration and finance may not
be greater than the salaries paid to the persons holding those
titles or exercising the responsibilities of those offices on the
first day of March, one thousand nine hundred ninety-three.
§9-2-6. Powers of commissioner of human services.
(a) Upon the effective date of this section, and
notwithstanding the provisions of subsection (b) of this section,
the secretary of the department of health and human resources
shall have all those powers and duties vested in the commissioner
of human services pursuant to the provisions of subsection (b) of
this section, other provision of this chapter and chapterforty-nine of this code:
Provided,
That the authority granted by
this subsection shall expire on the first day of July, one
thousand nine hundred ninety-five.
(b) Within limits of state appropriations and federal grants
and subject to provisions of state and federal laws and
regulations, the commissioner of human services of the department
of health and human resources, in addition to all other powers,
duties and responsibilities granted and assigned to that office
in this chapter and elsewhere by law, is authorized and empowered
to:
(1) 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 regulations, but not
inconsistent with state law:
(2) Obtain by purchase or lease such 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
commissioner.
(3) Sign and execute in the name of the state by the state
department of health and human resources any contract or
agreement with the federal government or its agencies, other
states, political subdivisions of this state, corporations,
associations, partnerships or individuals.
(4) Establish such special funds as may be required by the
Federal Social Security Act, as amended, or by any other act oracts 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 state department of health and human
resources, through the commissioner, 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 welfare 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.
(5) Establish, in addition to the state advisory board and
advisory council provided for in this chapter, such county
advisory boards as may in his judgment be necessary or desirable
to advise the department and the commissioner with respect to the
total public assistance program administered by the department or
any phase thereof, such additional board or boards to consist of
such number of persons, professional, lay, or both, and to have
such responsibilities of an advisory nature, as the commissioner
may determine. However, (1) the members of any such additional
board or boards shall not be compensated for their services but
shall be entitled to reimbursement for actual expenses incurredin the performance of their duties as a member of any such board;
and (2) the members of any such additional board or boards shall
serve at the will and pleasure of the commissioner.
(6) Provide at department expense a program of continuing
professional, technical and specialized instruction for the
personnel of the department.
(7) 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 place of residence in this state to his 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 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.
(8) Establish and maintain such institutions as are
necessary for the temporary care, maintenance and training of
children and other persons.
(9) Prepare and submit state plans which will meet the
requirements of federal laws, rules and regulations governing
federal-state assistance and federal assistance and which are not
inconsistent with state law.
(10) Organize within the department a board of review,
consisting of a chairman appointed by the commissioner and asmany assistants or employees of the department as may be
determined by the commissioner and as may be required by federal
laws, rules and regulations respecting state assistance, federal-
state assistance and federal assistance, such board of review to
have such powers of a review nature and such additional powers as
may be granted to it by the commissioner and as may be required
by federal laws, rules and regulations respecting federal-state
assistance and federal assistance.
(11) Provide by rules and regulations such review and appeal
procedures within the department of health and human resources as
may be required by applicable federal laws, rules and regulations
respecting state assistance, federal-state assistance and federal
assistance and as will provide applicants for, and recipients of
all, classes of public assistance an opportunity to be heard by
the board of review, a member thereof, or individuals designated
by said board, upon claims involving denial, reduction, closure,
delay, or other action or inaction pertaining to public
assistance.
(12) Provide by rules and regulations, consistent with
requirements of applicable federal laws, rules and regulations,
application forms and application procedures for the various
classes of public assistance.
(13) Provide locations for making applications for the
various classes of public assistance.
(14) 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.
(15) Delegate to the personnel of the department all powersand duties vested in the commissioner, except the power and
authority to sign contracts and agreements, but the commissioner
shall remain responsible therefor.
(16) Make such reports, in such form and containing such
information, as may be required by applicable federal laws, rules
and regulations respecting federal-state assistance and federal
assistance.
(17) Invoke any legal, equitable or special remedies for the
enforcement of the provisions of this chapter.
§9-2-7. Bureau of family assistance.
(a) The secretary is authorized to establish within the
department a bureau of family assistance which shall be
administered by a commissioner, who shall serve at the will and
pleasure of the secretary.
The commissioner of the bureau of family assistance shall
have the following powers and duties:
(1) To execute and administer programs pursuant to this
chapter or federal requirements which the secretary determines
are related to public assistance or work and training, which the
secretary delegates pursuant to the provisions of subdivision
(2), section four of this article;
(2) To execute and administer programs pursuant to this
chapter or federal requirements which the secretary determines
are related to health and human resources, which the secretary
delegates pursuant to the provisions of subdivision (2), section
four of this article;
(3) To exercise all other powers vested in the secretary
pursuant to this chapter or elsewhere in code and delegatedpursuant to the provisions of subdivision (2), section four of
this article, and to further delegate such powers as are
necessary and proper for efficient, effective program operation
and administration;
(4) To serve on boards and commissions established by this
code pursuant to a delegation of authority by the secretary or as
provided in this code;
(5) To recommend to the secretary proposals for legislative
rules to be promulgated pursuant to the chapter twenty-nine-a of
this code, related to programs and services delegated;
(b) Notwithstanding any delegation of powers pursuant to
this section and subdivision (2), section four of this article,
the secretary shall retain responsibility for any programs and
services delegated.
(c) On or before the first day of September, one thousand
nine hundred ninety-four, the commissioner of the bureau of
family assistance shall present proposed legislation to the
secretary, the governor and the Legislature. The legislation
shall propose that the office of commissioner of the bureau of
family assistance be created as a statutory office established by
the Legislature, to be appointed by the governor with the advice
and consent of the senate, and shall recommend an appropriate
salary. The legislation shall further propose the statutory
powers and duties to be vested in the bureau and the
commissioner, along with the organizational structure of the
bureau, recommendations relating to all sections of this code for
which authority has been delegated pursuant to the provisions of
subdivision (2), section four of this article, and a design forthe operations and programs of the bureau facilitating
streamlined and efficient delivery of public assistance services.
(d) The bureau of family assistance and the office of
commissioner of the bureau of family assistance as established by
the secretary shall terminate on the first day of July, one
thousand nine hundred ninety-five, unless continued and
reestablished by act of the Legislature. Upon termination, the
commissioner of the division of human services and the director
of the division of health shall have those powers, duties and
authority as set forth in this code.
§9-2-8. Bureau of community support.
(a) The secretary is authorized to establish within the
department a bureau of community support which shall be
administered by a commissioner, who shall serve at the will and
pleasure of the secretary.
The commissioner of the bureau of community support shall
have the following powers and duties:
(1) To administer state-operated treatment facilities
provided for in chapter twenty-seven of this code and to execute
and administer programs pursuant to that chapter and federal
requirements which the secretary determines are related to
providing services to mentally ill, mentally retarded, addicted,
behaviorally disordered persons, or developmentally disabled
persons, which the secretary delegates pursuant to the provisions
of subdivision (2), section four of this article;
(2) To administer state extended care and acute care
facilities provided for in chapter twenty-six of this code, which
the secretary delegates pursuant to the provisions of subdivision(2), section four of this article;
(3) To execute and administer child welfare programs
pursuant to chapter forty-nine of this code or federal
requirements, which the secretary delegates pursuant to the
provisions of subdivision (2), section four of this article;
(4) To execute and administer programs pursuant to this
chapter and chapters sixteen and twenty-nine of this code which
the secretary determines are related to aging and adult
supportive services, which the secretary delegates pursuant to
the provisions of subdivision (2), section four of this article;
(5) To execute and administer programs pursuant to this
chapter or federal requirements which the secretary determines
are related to community support services, which the secretary
delegates pursuant to the provisions of subdivision (2), section
four of this article;
(6) To exercise all other powers vested in the secretary
pursuant to this chapter or elsewhere in code and delegated
pursuant to the provisions of subdivision (2), section four of
this article, and to further delegate such powers as are
necessary and proper for efficient, effective program operation
and administration;
(7) To serve on boards and commissions established by this
code pursuant to a delegation of authority by the secretary or as
provided in this code;
(8) To recommend to the secretary proposals for legislative
rules to be promulgated pursuant to the chapter twenty-nine-a of
this code, related to programs and services delegated;
(b) Notwithstanding any delegation of powers pursuant tothis section and subdivision (2), section four of this article,
the secretary shall retain responsibility for any programs and
services delegated.
(c) On or before the first day of September, one thousand
nine hundred ninety-four, the commissioner of the bureau of
community support shall present proposed legislation to the
secretary, the governor and the Legislature. The legislation
shall propose that the office of commissioner of the bureau of
community support be created as a statutory office established by
the Legislature, to be appointed by the governor with the advice
and consent of the senate, and shall recommend an appropriate
salary. The legislation shall further propose the statutory
powers and duties to be vested in the bureau and the
commissioner, along with the organizational structure of the
bureau, recommendations relating to all sections of this code for
which authority has been delegated pursuant to the provisions of
subdivision (2), section four of this article, and a design for
the operations and programs of the bureau facilitating
streamlined and efficient delivery of community support
services.
(d) The bureau of community support and the office of
commissioner of the bureau of community support as established by
the secretary shall terminate on the first day of July, one
thousand nine hundred ninety-five, unless continued and
reestablished by act of the Legislature. Upon termination, the
commissioner of the division of human services and the director
of the division of health shall have those powers, duties and
authority as set forth in this code.
§9-2-9. Bureau of public health.
(a) The secretary is authorized to establish within the
department a bureau of public health which shall be administered
by a commissioner, who shall serve at the will and pleasure of
the secretary.
The commissioner of the bureau of public health shall have
the following powers and duties:
(1) To execute and administer programs pursuant to this
chapter, chapter sixteen of the code, or federal requirements and
to exercise related powers pursuant to other chapters of the code
which the secretary determines are related to public health,
which the secretary delegates pursuant to the provisions of
subdivision (2), section four of this article;
(2) To exercise all other powers vested in the secretary
pursuant to this chapter or elsewhere in code and delegated
pursuant to the provisions of subdivision (2), section four of
this article, and to further delegate such powers as are
necessary and proper for efficient, effective program operation
and administration;
(3) To exercise all powers vested in the commissioner of
the bureau of public health as provided in this code;
(4) To serve on boards and commissions established by this
code pursuant to a delegation of authority by the secretary or as
provided in this code;
(5) To recommend to the secretary proposals for legislative
rules to be promulgated pursuant to the chapter twenty-nine-a of
this code, related to programs and services delegated;
(b) Notwithstanding any delegation of powers pursuant tothis section and subdivision (2), section four of this article,
the secretary shall retain responsibility for any programs and
services delegated.
(c) On or before the first day of September, one thousand
nine hundred ninety-four, the commissioner of the bureau of
public health shall present proposed legislation to the
secretary, the governor and the Legislature. The legislation
shall propose that the office of commissioner of the bureau of
public health be created as a statutory office established by the
Legislature, to be appointed by the governor with the advice and
consent of the senate, and shall recommend an appropriate salary.
The legislation shall further propose the statutory powers and
duties to be vested in the bureau and the commissioner, along
with the organizational structure of the bureau, recommendations
relating to all sections of this code for which authority has
been delegated pursuant to the provisions of subdivision (2),
section four of this article, and a design for the operations and
programs of the bureau facilitating streamlined and efficient
delivery of public health services.
(d) The bureau of public health and the office of
commissioner of the bureau of public health as established by the
secretary shall terminate on the first day of July, one thousand
nine hundred ninety-five, unless continued and reestablished by
act of the Legislature. Upon termination, the commissioner of
the division of human services and the director of the division
of health shall have those powers, duties and authority as set
forth in this code.
§9-2-10. Bureau of administration and finance.
(a) The secretary is authorized to establish within the
department a bureau of administration and finance which shall be
administered by a commissioner, who shall serve at the will and
pleasure of the secretary.
The commissioner of the bureau of administration and finance
shall have the following powers and duties:
(1) Notwithstanding any other provision of this code to the
contrary, to execute and administer powers and duties related to
the business, fiscal, and administrative affairs of the
department, which the secretary delegates pursuant to the
provisions of subdivision (2), section four of this article;
(2) To execute and administer powers and duties pursuant to
chapters sixteen and twenty-seven of this code related to health
facility licensure and certification, which the secretary
delegates pursuant to the provisions of subdivision (2), section
four of this article;
(3) To execute and administer programs pursuant to this
chapter and federal requirements which the secretary determines
are related to medicaid, which the secretary delegates pursuant
to the provisions of subdivision (2), section four of this
article, except for the medicaid fraud control unit which the
secretary shall establish separately;
(4) To exercise all other powers vested in the secretary
pursuant to this chapter or elsewhere in code and delegated
pursuant to the provisions of subdivision (2), section four of
this article, and to further delegate such powers as are
necessary and proper for efficient, effective program operation
and administration;
(5) To exercise all powers vested in the commissioner of
the bureau of administration and finance as provided in this
code;
(6) To serve on boards and commissions established by this
code pursuant to a delegation of authority by the secretary or as
provided in this code;
(7) To recommend to the secretary proposals for legislative
rules to be promulgated pursuant to the chapter twenty-nine-a of
this code, related to programs and services delegated;
(b) Notwithstanding any delegation of powers pursuant to
this section and subdivision (2), section four of this article,
the secretary shall retain responsibility for any programs and
services delegated.
(c) The commissioner of the bureau of administration and
finance, in addition to performing duties and responsibilities
delegated by the secretary, shall undertake a review of all funds
available to the department, including collections of special
revenue, federal funds or other receipts, and the actual and
anticipated expenditures of the department as a whole and
functional units and statutory agencies within the department;
and shall prepare for the secretary's review and approval, to be
submitted, with the approval of the secretary, not later than the
first day of September of each year, to the secretary of the
department of administration, a request for appropriations for
the fiscal year next ensuing which reflects the functional
organization of the department and of programs and services
provided, consistent with this code and the requirements of
federal law.
(d) On or before the first day of September, one thousand
nine hundred ninety-four, the commissioner of the bureau of
administration and finance shall present proposed legislation to
the secretary, the governor and the Legislature. The legislation
shall propose that the office of commissioner of the bureau of
administration and finance be created as a statutory office
established by the Legislature, to be appointed by the governor
with the advice and consent of the senate, and shall recommend an
appropriate salary. The legislation shall further propose the
statutory powers and duties to be vested in the bureau and the
commissioner, along with the organizational structure of the
bureau, recommendations relating to all sections of this code for
which authority has been delegated pursuant to the provisions of
subdivision (2), section four of this article, and a design for
the operations and programs of the bureau facilitating
streamlined and efficient delivery of services.
(d) The bureau of administration and finance and the office
of commissioner of the bureau of administration and finance
assistance as established by the secretary shall terminate on the
first day of July, one thousand nine hundred ninety-five, unless
continued and reestablished by act of the Legislature. Upon
termination, the commissioner of the division of human services
and the director of the division of health shall have those
powers, duties and authority as set forth in this code.
§9-2-11. Disposition of moneys received by commissioner of
bureau of administration and finance; report to auditor;
continuation of health facility licensing account.
(a) As used in this section, the word "commissioner" meansthe commissioner of the bureau of administration and finance.
(b) The commissioner shall receive and account for all
moneys required to be paid pursuant to chapter sixteen or other
provisions of this code to bureaus, divisions or offices within
the department, as fees for permits, licenses or registrations,
and shall pay such moneys into the state treasury monthly, on or
before the tenth day of the month succeeding the month in which
such moneys were received. The commissioner shall, on the first
day of January and the first day of July in each calendar year,
or within five days thereafter, certify to the state auditor a
detailed statement of all such moneys received by him or her
during the preceding six months.
(c) Subject to the provisions set forth in section two,
article two, chapter twelve of this code, the "health facility
licensing account" heretofore established in the state treasury
is hereby continued.
After the effective date of this provision, the commissioner
shall deposit to the health facility licensing account all health
facility licensing fees.
After the first day of July, one thousand nine hundred
eighty-eight, the commissioner is authorized to expend the moneys
deposited in the health facility licensing account in accordance
with the laws of this state as is necessary to implement
activities of health facility licensing. As part of the annual
state budget, the Legislature shall appropriate for health
facility licensure all moneys deposited in the health facilities
licensing account.
Any remaining balance including accrued interest in saidaccount at the end of any fiscal year shall not revert to the
general revenue fund, but shall remain in said account, and such
moneys shall be expendable after appropriation by the Legislature
in ensuing fiscal years. The commissioner, through the
secretary, shall make an annual report to the Legislature on the
health facility licensing account, including the previous fiscal
year's expenditures and projected expenditures for the next
fiscal year.
§9-2-12. Hospital services revenue account.
The "hospital services revenue account" heretofore
established in the state treasury is continued. The secretary
shall deposit promptly into the account any fees received by a
facility owned and operated by the department of health and human
resources from whatever source including the federal government,
state government or other third-party payer or personal payment.
The secretary is authorized to expend the moneys deposited
in the hospital services revenue account in accordance with
federal laws and regulations and with the laws of this state.
The secretary is authorized to expend the moneys deposited
in the hospital services revenue account at such times and in
such amounts as the secretary determines to be necessary for the
purpose of improving the delivery of health and mental health
services at state health and mental health facilities or for the
purpose of maintaining or obtaining certification at a state
health or mental health facility:
Provided,
That during any
fiscal year in which the secretary anticipates spending any money
from such account, he or she shall submit to the executive
department during the budget presentation period prior to theLegislature convening, before that fiscal year for inclusion in
the executive budget document and budget bill, his or her
recommended capital investments, recommended priorities and
estimated costs, as well as requests of appropriations for the
purpose of improving the delivery of health and mental health
services or for the purpose of maintaining or obtaining
certification at a state health or mental health facility.
The secretary shall make an annual report to the Legislature
on the status of the health services revenue account, including
the previous year's expenditures and projected expenditures for
the next year.
§9-2-13. Investigations and hearings; power to administer oaths,
subpoena witnesses, etc.; use of information and material
acquired.
The secretary, or any officer or employee of the department
designated by the secretary, shall have the power to conduct
investigations, inquiries and hearings concerning matters covered
by the laws of this state pertaining to health and human
resources and within the authority of the department and the
rules, regulations and orders of the secretary.
The secretary and every officer or employee of the
department designated to hold any inquiry, investigation or
hearing shall have the power to administer oaths and
affirmations, certify to all official acts, issue subpoenas and
order the attendance and testimony of witnesses in the production
of papers, books and documents. In case of the failure of any
person to comply with any subpoena or order issued under the
authority of this section, the secretary or the secretary'sauthorized representative may invoke the aid of any circuit court
of this state. The court may thereupon order such person to
comply with the requirements of the subpoena order or to give
evidence touching the matter in question. Failure to obey the
order of the court may be punished by the court as a contempt
thereof.
Subject to the foregoing provision the secretary may in his
or her discretion make available to appropriate federal, state
and municipal agencies information and material developed in the
course of investigation and hearings:
Provided,
That information
obtained from studies or from any investigation made or hearing
held pursuant to the provisions of this article shall not be
admissible in evidence in any action at law to recover damages
for personal injury or in any action under the Workers'
Compensation Act, but such information, if available, shall be
furnished upon request to the West Virginia compensation
commissioner for the sole purpose of adjusting claims presented
to the said commissioner.
§9-2-14. State's participation in federal work incentive
program.
The State of West Virginia hereby 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 is hereby authorized to
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, created by
such amendments. Any moneys transferred by the secretary to theaforesaid special fund shall be considered as money expended for
public grants. The secretary is further empowered to promulgate
rules, establish plans and perform any other acts necessary to
implement this state's participation in the aforesaid work
incentive program.
The secretary is directed and authorized to cooperate and
coordinate his or her activities in regard to such program with
the commissioner of the West Virginia bureau of employment
security as contemplated by section sixteen-a, article two,
chapter twenty-one-a of the code of West Virginia.
§9-2-15. Information and referral services.
(a) Each local public assistance office shall compile,
maintain and post a current list of charity food banks and other
emergency food providers in the area served by the local food
stamp office and refer individuals who need food to local
programs that may be able to provide assistance.
(b) The department shall utilize 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 display this
telephone number in all its offices that issue food stamps.
§9-2-16. Acceptance of federal-state assistance and federal
assistance.
The state assents 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 thedepartment of health and human resources 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.
§ 9-2-17. Responsibility and powers of the department regarding
public assistance programs; information and data to
be supplied by other agencies.
The department of health and human resources is charged with
the responsibility of administering for the state the public
assistance programs, for which responsibility it shall have (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 assistance 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 public assistance to those
persons qualified therefor in as prompt, fair, orderly, efficient
and economical manner as possible.
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 of health and
human resources such information and data as each such
department, agency, commission or board may collect about any
applicant for or recipient of any type of federal or state
assistance upon such terms as may be prescribed by the governor,
if such information and data would be relevant in determiningwhether such applicant or recipient is qualified or eligible for
any such assistance, and after such information and data have
been obtained by the department of health and human resources the
same shall be used only by such department in carrying out and
discharging its powers, duties and responsibilities.
§9-2-18. Caseload standards committee to be developed;
definitions.
The secretary shall develop caseload standards based on the
actual duties of employees in public assistance program area of
the department and may take into consideration existing
professional caseload standards. Standards shall be reasonable
and achievable.
A caseload standards committee shall be established and
composed of two employees from each program area in each region.
The members shall be elected by the employees from each program
area from among all the employees in the program area. A
subcommittee composed of the members from each program of
services provided shall meet with the appropriate office director
to develop caseload standards for each program. The committee
shall meet at least twice yearly and shall report recommendations
to the secretary.
Representatives of an employee organization may serve in an
advisory role.
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 department of
health and human resources personal services budget request tothe governor and the Legislature.
As used in this section:
"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.
"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.
ARTICLE 6A. OFFICE OF THE INSPECTOR GENERAL.
§9-6A-1. Legislative purpose and findings.
It is the purpose of the Legislature to continue within the
department of health and human resources an office of the
inspector general, and to provide it with the authority and
responsibility to assist the secretary in ensuring that the
public assistance and other programs and operations of the
department are administered and conducted in compliance with
applicable state and federal laws, regulations, policies, and
established procedures.
§9-6A-2. Structure of the office; powers and duties.
The office of the inspector general, hereinafter in this
article referred to as the "office," and previously established
within the department of human services is hereby continued
within the department of health and human resources. The office,
to be administered by an inspector general, shall be separate and
apart from the single state agency administering the state'smedicaid program.
Within the office of the inspector general, there shall be
the following divisions: (1) a board of review as set forth in
section four, article two of this chapter; (2) a medicaid fraud
control unit, as set forth in article seven of this chapter; (3)
an investigations and fraud management unit; (4) a quality
control unit; and (5) a civil rights compliance unit. The
inspector general, by and with the approval of the secretary, may
establish additional divisions within the office to effectuate
the purposes of this article.
Within the limits of state appropriations and federal
grants, and subject to the provisions of state and federal laws
and regulations, the office of inspector general is authorized
and empowered to:
(1) Execute and administer, through delegation of powers of
the secretary, a board of review, and as may be required by state
and federal law and regulation, a fair and impartial hearings
process for aggrieved applicants for and recipients of department
services or benefits, or other such persons so affected by
departmental action as to have standing. The board shall have
such powers of a review nature and such additional powers as may
be lawfully granted it by the secretary and as may be required by
federal laws, court decisions, rules and regulations respecting
federal-state assistance and federal assistance;
(2) Execute and administer a medicaid fraud control unit,
as set forth in article seven of this chapter;
(3) Execute and administer an investigations and fraud
management unit, and as may be required by federal laws andregulations with respect to contingent federal funding of state-
administered assistance programs, a means of: (a) detecting and
controlling fraud and abuse within benefit programs of the
department; (b) recovering where feasible for the State the value
of any moneys, public assistance benefits, goods or services duly
determined as improperly paid, distributed, provided, or
reimbursed to persons by the department or improperly obtained,
received, or withheld by persons from the department, utilizing
such means of recovery as may be available or required under
state and federal law, rule or administrative regulation; and (c)
assisting the secretary with investigations on matters of
internal departmental concern, which may bear on program
integrity, security, or efficiency of operations.
(4) Execute and administer a quality control program, and
as may be required by federal laws and regulations with respect
to contingent federal funding of state-administered assistance
programs, a means of monitoring and assessing the ability of the
department to properly distribute benefits to qualified
recipients. The quality control program shall periodically
recommend to the secretary or his or her designee such methods
and procedures as may enhance the ability of the department to
deliver benefits and services accurately, effectively and
expeditiously to eligible recipients.
(5) Execute and administer a civil rights compliance
program to monitor departmental compliance with all applicable
federal and state laws, rules, regulations, and court decisions
regarding public assistance programs and to determine the
obligations and duties of the department with respect to thecivil rights of individuals impacted by its actions.
(6) Cooperate with the federal government in all programs
designed to eliminate discrimination, detect and deter fraud and
abuse in public assistance programs, enhance the ability of the
State to recover funds improperly distributed, and improve the
fair and efficient delivery of benefits and services to qualified
individuals.
(7) Execute and administer other powers, duties and
responsibilities granted, implied or assigned to the office in
this chapter or elsewhere by law, or delegated to the office by
the secretary.
§9-6A-3. Right of access to records; confidentiality.
The office of inspector general shall be granted and have
right of access, subject to the approval of the secretary, to all
pertinent records and materials within the department, or such
records and materials of any independent agency providing
services funded in whole or in part under terms of a contract
with the department, so as to enable the office to successfully
complete any audit, review, investigation, or other task
delineated in this article or delegated by the secretary.
The office of inspector general shall ensure confidentiality
and shall not publicly disclose: (a) the name or identity of the
subject of any investigation; (b) the name or identity of a
complainant or other person providing evidence or information
adverse to the interests of another; or (c) the facts disclosed
in any investigation:
Provided,
That the same may be necessarily
disclosed in any legal action or proceeding brought pursuant to
any provision of this code or proper administrative regulation.
§9-6A-4. Procedures for possible criminal violations;
presumption of law enforcement authority.
(a) Any investigation conducted pursuant to this article
which indicates the possible occurrence of a criminal violation
of any provision of this code shall be summarized in report form,
reviewed by the inspector general, and forwarded to the
prosecuting attorney of the county having appropriate
jurisdiction.
(b) With regard to their respective activities in
investigating and detecting criminal violations of state or
federal laws, rules or regulations, the medicaid fraud control
unit and the investigations and fraud management unit within the
office of inspector general shall be presumed "law enforcement
agencies" for the purposes of section four, article one, chapter
twenty-nine-b of this code.
ARTICLE 7. FRAUD AND ABUSE IN THE MEDICAID PROGRAM.
§9-7-1. Legislative purpose and findings; powers and duties of
fraud control unit.
(a) It is the purpose of the Legislature to continue the
The medicaid fraud control unit previously established within the
West Virginia department of welfare is hereby continued as an
independent and autonomous unit within the department of health
and human resources separate and apart from the single state
agency administering the state's medicaid program and to provide
it with shall have the responsibility and authority for
investigating and controlling fraud and abuse of the medical
programs of the state department of welfare health and human
resources which have been established pursuant to section two,article four of this chapter.
It is the finding of the Legislature that substantial sums
of money have been lost to the state and federal government in
the operation of the medical program of the state due to the
overpayment of moneys to medical providers. Such overpayments
have been the result of both the abuse of and fraud in the
reimbursement process.
(b) The medicaid fraud control unit of the state department
of welfare 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 and the program known as
handicapped children's services.
(2) The investigation of complaints alleging abuse or
neglect of 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 employ and train personnel to achieve the purposes
of this article and to employ legal counsel, investigators,
auditors and clerical support personnel as are deemed necessary
from time to time to accomplish the purposes herein.
§9-7-4. Applications for medical assistance; false statements
or representations; conversion of nursing home patient's
funds; criminal penalties and civil liability.
(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 single state agency.
(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 single state agency.
(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 single state agency
to which the person or any other person is not entitled.
(d) A person in de facto control of the personal finances of
a patient receiving medicaid assistance and residing in a nursing
home licensed under article five-c, chapter sixteen of this code,
whether or not such person has been named guardian of the
patient, granted durable power of attorney for the patient,
deemed the patient's representative under the "substituted
consent" provisions of section five-a of said article, or
otherwise granted formal control of the patient's finances, shall
not knowingly convert any of the patient's to his or her own use
or the use of anyone other than the patient, or fail to meet the
legal financial obligations of the patient with respect to
obtaining medical assistance under the medical programs of the
single state agency.
(e) Any person found to be in violation of subsection (a),
(b) or (c) of this section shall be guilty of a felony, and, upon
conviction, shall be confined in the penitentiary not less thanone nor more than ten years, or shall be fined not to exceed ten
thousand dollars or both fined and imprisoned as provided. Any
person who violates subsection (d) of this section shall be
liable for money damages to the patient, the single state agency,
the facility, or other such party to the extent the party is
harmed by the violation.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 27A. MEDICAL WASTE ACT.
§16-27A-1. Short title.
This article shall be known and cited as the "West Virginia
Medical Waste Act."
§16-27A-2. Legislative findings and purpose.
The Legislature finds that the proper and environmentally-
sound disposal of infectious and noninfectious medical waste is
an important issue facing all West Virginians.
The Legislature further finds that effective controls for
the management of medical waste are necessary to ensure the
protection of the public health, safety and welfare, and the
environment.
The Legislature further finds that regulation of the
generation, handling, storage, transportation, treatment and
disposal of medical waste is an important and necessary function
of state government.
The Legislature further finds that toxic pollutants emitted
by medical waste incinerators are an important public health
hazard.
The Legislature further finds that commercial incineration
of medical waste, and its transportation in the infectious state,pose a potentially serious threat to the health, safety and
welfare of West Virginians.
The Legislature further finds that safe and cost-effective
alternatives to the incineration of infectious and noninfectious
medical waste should be encouraged.
The Legislature further finds that the public interest is
best served by:
(1) Efforts to reduce the volume of medical waste generated
at all levels;
(2) On-site separation and treatment of infectious medical
waste;
(3) Treatment and disposal of infectious medical waste in
local infectious medical waste management facilities; and
(4) Treatment and disposal in approved regional infectious
waste management facilities when administrative proceedings
result in a finding that on-site or local treatment of infectious
medical waste is not feasible.
The Legislature further finds that local responsibility for
the minimization in volume, and for the treatment and disposal of
infectious and noninfectious medical waste is an important part
of a sound and rational waste management program.
The Legislature further finds that small quantity generators
of infectious medical waste should either render such waste
noninfectious on-site, or properly label and package the waste
for transportation to a local infectious waste management
facility for proper treatment and disposal.
The Legislature further finds that generators of medical
waste should be informed and educated in its management; thattraining should be provided to all workers likely to come in
contact with medical waste, including in-home health care
workers; and that relevant information on the potential for
infection and disease related to medical waste should be made
available to the general public, including in-home health care
patients.
The Legislature further finds that the necessity for
transporting infectious medical waste be minimized, and that any
infectious medical waste transported be safely packaged and
identified by source and content.
The Legislature further finds that public policy favors a
reduction in the volume of infectious and noninfectious medical
waste, the separation of infectious medical waste from
noninfectious medical waste, and that efforts to reduce medical
waste should be fostered and strongly encouraged at all levels of
generation.
The Legislature further finds that noninfectious medical
waste is solid waste.
The Legislature further finds that noninfectious medical
waste should be handled by environmentally-sound disposal
technologies, and that alternative disposal techniques promoting
safe recycling and limiting the need for incineration should be
emphasized, developed and utilized.
Therefore, it is the policy of the state of West Virginia to
prohibit commercial infectious medical waste facilities; to
regulate and control the generation, handling, storage,
transportation, treatment and disposal of infectious and
noninfectious medical waste; to reduce the generation ofinfectious and noninfectious medical waste; to encourage local
responsibility for the minimization, management and disposal of
infectious and noninfectious medical waste; and to authorize the
department of health and human resources to promulgate rules and
regulations necessary to carry out the purposes of this article.
§16-27A-3. Definitions.
As used in this article:
(1) "Commercial infectious medical waste facility" means
any infectious medical waste management facility at which
thirty-five percent or more by weight of the total infectious
medical waste stored, treated, or disposed of by said facility in
any calendar year is generated off-site.
(2) "Disposal" means the discharge, deposit, injection,
dumping, spilling, leaking or placing of any infectious medical
waste into or on any land or water so that such waste, or any
constituent thereof, may be emitted into the air, discharged into
any waters, including groundwater, or otherwise enter into the
environment.
(3) "Generator" means any person, by site location, whose
act or process produces medical waste.
(4) "Hospital" means an institution which is primarily
engaged in providing to inpatients, by or under the supervision
of physicians, diagnostic and therapeutic services for medical
diagnosis, treatment and care of injured, disabled or sick
persons or services for the rehabilitation of injured, disabled
or sick persons. This term also includes psychiatric and
tuberculosis hospitals.
(5) "Infectious medical waste" means medical wasteidentified as capable of producing an infectious disease.
Medical waste shall be considered capable of producing an
infectious disease if it has been, or is likely to have been,
contaminated by an organism likely to be pathogenic to healthy
humans, if such organism is not routinely and freely available in
the community, and such organism has a significant probability of
being present in sufficient quantities and with sufficient
virulence to transmit disease. For the purposes of this article,
infectious medical waste shall include the following:
(A) Cultures and stocks of microorganisms and biologicals;
(B) Blood and blood products;
(C) Pathological wastes;
(D) Sharps;
(E) Animal carcasses, body parts, bedding and related
wastes;
(F) Isolation wastes:
(G) Any residue or contaminated soil, water or other debris
resulting from the cleanup of a spill of any infectious medical
waste; and
(H) Any waste contaminated by or mixed with infectious
medical waste.
(6) "Medical waste" means infectious and noninfectious
solid waste generated in the course of the diagnosis, treatment
or immunization of human beings or animals, or in research
pertaining thereto, or in the production or testing of
biologicals. Such term does not include low-level radioactive
waste, any hazardous waste identified or listed under Subtitle C,
or any household waste as defined in the regulations promulgatedpursuant to Subtitle C.
(7) "Noncommercial infectious medical waste facility" means
any infectious medical waste facility at which less than thirty-
five percent by weight of the total infectious medical waste
stored, treated or disposed of by said facility in any calendar
year is generated off-site.
(8) "Noninfectious medical waste" means any medical waste
not capable of producing an infectious disease or infectious
medical waste which has been rendered noninfectious.
Noninfectious medical waste is considered solid waste for
purposes of this code.
(9) "Off-site" means a facility or area for the collection,
storage, transfer, processing, treatment or disposal of
infectious medical waste that is not on the generator's site, or
a facility or area that received infectious medical waste for
storage or treatment that has not been generated on-site.
(10) "On-site" means the same or geographically contiguous
property which may be divided by a public or private
right-of-way, provided the entrance and exit between the
properties is at a crossroads intersection, and access is by
crossing, as opposed to going along, the right-of-way.
Noncontiguous properties owned by the same person, but connected
by a right-of-way controlled by said person and to which the
public does not have access, is also considered on-site property.
Hospitals with more than one facility located in the same county
shall be considered one site.
(11) "Secretary" means the secretary of the department of
health and human resources or his or her designee.
(12) "Small quantity generator" means any generator of
infectious medical waste who generates fifty pounds or less
during a one-month period.
(13) "Storage" means the containment of infectious medical
waste on a temporary basis. Storage shall not constitute
disposal of the waste.
(14) "Subtitle C" means Subtitle C of the federal Resource
Conservation and Recovery Act of 1976, 90 Stat. 2806, as amended.
(15) "Treatment" means any method, technique or process,
including neutralization, designed to change the physical,
chemical or biological character or composition of any infectious
medical waste so as to render such waste noninfectious.
§16-27A-4. Commercial infectious medical waste facility
prohibited.
It shall be unlawful to construct or operate a commercial
infectious medical waste facility in the state of West Virginia:
Provided,
That the secretary may authorize an exception to this
prohibition solely for facilities not utilizing incineration
technology in any form, including the manufacture or burning of
refuse derived fuel:
Provided, however,
That such an exception
may be granted only following: (1) The promulgation of
legislative rules, in accordance with the provisions of chapter
twenty-nine-a of this code, containing guidelines for such an
exception that are being fully consistent with the findings and
purposes contained in section two of this article; (2) a public
hearing on the record in the region affected by the proposed
facility; (3) an investigation of the infectious medical waste
stream in the region affected by the proposed facility; and (4)a determination that programs to minimize and reduce the
infectious medical waste stream have been implemented.
§16-27A-5. Designation of the department of health and human
resources as the state infectious medical waste management
primary agency; prohibitions; requiring permits.
(a) The department of health and human resources is hereby
designated as the infectious medical waste management primary
agency for this state and the secretary, as the administrative
head of the department, is hereby authorized to take all action
necessary or appropriate to secure to this State the benefits of
this legislation pertaining to infectious medical waste. In
carrying out the purposes of this article, the secretary is
hereby authorized to cooperate with agencies of the federal
government, this state and other states, and other interested
persons, in all matters relating to medical waste management.
(b) On or after the first day of October, one thousand nine
hundred ninety-one, no person may own, construct, modify, operate
or close any facility or site for the treatment, storage or
disposal of infectious medical waste, nor shall any person store,
treat or dispose of any such infectious medical waste without
first obtaining a permit from the secretary, unless specifically
excluded or exempted by rules promulgated by the secretary.
§16-27A-6. Powers of secretary; authority to promulgate rules.
(a) The secretary shall promulgate legislative rules, in
accordance with the provisions of chapter twenty-nine-a of this
code, necessary to effectuate the findings and purposes of this
article. Said rules shall include, but not be limited to, the
following:
(1) A plan designed to encourage and foster reduction in
the volume of infectious and noninfectious medical waste and the
separation of infectious and noninfectious medical waste;
(2) Guidelines and procedures for the development and
implementation of local infectious medical waste management
plans, to be followed by all generators, that set forth proper
methods for the management of infectious and noninfectious
medical waste;
(3) Criteria for identifying the characteristics of
infectious medical waste and identifying the characteristics of
noninfectious medical waste;
(4) Standards applicable to generators of medical waste
necessary to protect public health, safety and the environment,
which standards shall establish requirements respecting:
(A) Record-keeping practices that accurately identify the
quantities of infectious medical waste generated, the
constituents thereof which are significant in quantity or in
potential harm to human health or the environment, and the
disposition of such waste;
(B) Labeling practices for containers used in the storage,
transportation or disposal of infectious medical waste which will
accurately identify such waste;
(C) Use of appropriate containers for infectious medical
waste;
(D) Furnishing of information regarding the general
composition of infectious medical wastes to persons transporting,
treating, storing or disposing of such waste;
(E) Use of a manifest system and other reasonable means toassure that all infectious medical waste is designated for and
arrives at treatment, storage or disposal facilities for which
the secretary has issued permits, other than facilities on the
premises where the waste is generated; and
(F) The submission of reports to the secretary, at such
times as the secretary deems necessary, setting out the quantity
of infectious medical waste generated during a particular time
period, and the disposition of such infectious medical waste;
(5) Performance standards applicable to owners and
operators of facilities for the treatment, storage or disposal of
infectious medical waste necessary to protect public health and
safety and the environment, which standards shall include, but
need not be limited to, requirements respecting:
(A) Maintaining records of all infectious medical waste and
the manner in which such waste was treated, stored or disposed
of;
(B) Reporting, monitoring and inspection of and compliance
with the manifest system referred to in subdivision (4),
subsection (a) of this section;
(C) Treatment, storage or disposal of all infectious
medical waste received by the facility pursuant to operating
methods, techniques and practices as may be satisfactory to the
secretary;
(D) The location, design and construction of infectious
medical waste treatment, disposal or storage facilities;
(E) Contingency plans for effective action to minimize
unanticipated damage from any treatment, storage or disposal of
infectious medical waste;
(F) The maintenance or operation of such facilities and
requiring additional qualifications as to ownership, continuity
of operation, training for personnel and financial responsibility
as may be necessary or desirable:
Provided,
That no private
entity may be precluded by reason of criteria established under
this subsection from the ownership or operation of facilities
providing infectious medical waste treatment, storage or disposal
services where such entity can provide assurances of financial
responsibility and continuity of operation consistent with the
degree and duration of risks associated with the treatment,
storage or disposal of infectious medical waste; and
(G) Compliance with the requirements of this article
respecting permits for treatment, storage or disposal;
(6) The terms and conditions under which the secretary
shall issue, modify, suspend, revoke or deny permits required by
this article. The legislative rules required by this subdivision
shall be promulgated by the first day of August, one thousand
nine hundred ninety-one;
(7) Establishing and maintaining records; making reports;
taking samples and performing tests and analyses; installing,
calibrating, operating and maintaining monitoring equipment or
methods; and providing any other information necessary to achieve
the purposes of this article;
(8) Standards and procedures for the certification of
personnel at infectious medical waste treatment, storage or
disposal facilities or sites;
(9) Procedures for public participation in the
implementation of this article;
(10) Procedures and requirements for the use of manifests
during the transportation of infectious medical wastes;
(11) Procedures and requirements for the submission and
approval of a plan by the owners or operators of infectious
medical waste storage, treatment and disposal facilities, for
closure of such facilities, post-closure monitoring and
maintenance, and for sudden and nonsudden accidental occurrences;
and
(12) A schedule of fees to recover the costs of processing
permit applications and renewals, training, enforcement,
inspections and program development.
(b) The legislative rules required by subsection (a) shall
be promulgated within six months after the effective date of this
article.
(c) Within twelve months after the effective date of this
article, the secretary shall conduct and publish a study of
infectious medical waste management in this state which shall
include, but not be limited to:
(1) A description of the sources of infectious medical
waste generation within the state, including the types and
quantities of such waste;
(2) A description of current infectious medical waste
management practices and costs, including treatment, storage and
disposal within the state; and
(3) An inventory of existing infectious medical waste
treatment, storage and disposal sites.
(d) Any person aggrieved or adversely affected by an order
of the secretary pursuant to this article, or by the denial orissuance of a permit, or the failure or refusal of said secretary
to act within a reasonable time on an application for a permit or
the terms or conditions of a permit granted under the provisions
of this article, may appeal to a special hearing examiner
appointed to hear contested cases in accordance with the
provisions of chapter twenty-nine-a of this code. The secretary
shall promulgate legislative rules establishing procedures for
appeal and the conduct of hearings.
(e) In addition to those enforcement and inspection powers
conferred upon the secretary elsewhere by law, the secretary
shall have the enforcement and inspection powers as provided in
sections seven, eight and nine of this article.
(f) Nothing in this section shall be construed to diminish
or alter the authority of the air pollution control commission or
its director under article twenty of this chapter.
§16-27A-7. Inspections; right of entry; sampling; reports and
analyses; subpoenas.
(a) The secretary, upon the presentation of proper
credentials and at reasonable times, may enter any building,
property, premises, place, vehicle or permitted facility where
infectious medical wastes are or have been generated, treated,
stored, transported or disposed of for the purpose of promptly
investigating any person's compliance with the provisions of this
article, legislative rules or permits issued by the secretary.
(b) The secretary shall make periodic inspections of every
permitted facility as necessary to effectively implement and
enforce the requirements of this article or the legislative rules
promulgated by or permits issued by the secretary. After aninspection is made, a report shall be prepared and filed with the
secretary. A copy of such inspection report shall be promptly
furnished to the person in charge of such building, property,
premises, place, vehicle or facility. All inspection reports
shall be available to the public in accordance with the
provisions of article one, chapter twenty-nine-b of this code.
(c) Whenever the secretary has cause to believe that any
person is in violation of any provision of this article, any
condition of a permit issued by the secretary, any order or any
legislative rule promulgated by the secretary under this article,
he or she shall immediately order an inspection of the building,
property, premises, place, vehicle or permitted facility at which
the alleged violation is occurring.
(d) Upon presentation of proper credentials and at
reasonable times, the secretary may enter any establishment,
building, property, premises, vehicle or other place maintained
by any person where infectious medical waste is being or has been
generated, transported, stored, treated or disposed of to inspect
and take samples of waste and the contents of any containers.
The secretary shall promptly provide a copy of any analysis to
the owner, operator or agent in charge.
(e) Upon presentation of proper credentials and at
reasonable times, the secretary shall be given access to all
records relating to the generation, transportation, storage,
treatment or disposal of infectious medical waste in the
possession of any person who generates, stores, treats,
transports, disposes of, or otherwise handles or has handled such
waste. The secretary shall be furnished with copies of all suchrecords or given the records for the purpose of making copies.
If the secretary, upon inspection, investigation or through other
means, observes or learns of a violation or probable violation of
this article, he or she is authorized to issue subpoenas and
subpoenas duces tecum and to order the attendance and testimony
of witnesses and to compel the production of any books, papers,
documents, manifests and other physical evidence pertinent to
such investigation or inspection.
§16-27A-8. Enforcement orders; hearings.
(a) If the secretary, upon inspection, investigation or
through other means observes, discovers or learns of a violation
of the provisions of this article, any permit, order or
legislative rules promulgated hereunder, he or she may:
(1) Issue an order stating with reasonable specificity the
nature of the violation and requiring compliance immediately or
within a specified time. An order issued under this section may
suspend, revoke or modify permits, require a person to take
remedial action, or require a person to cease and desist
activities which violate the provisions of this article;
(2) Seek an injunction in accordance with subsection (b) of
section nine of this article; or
(3) Institute a civil action in accordance with subsection
(a) of section nine of this article.
(b) Any person who is subject to a cease and desist order
may file a notice of request for reconsideration with the
secretary within seven days of the issuance of the order. Within
ten days of filing of the notice of a request for
reconsideration, said person shall have a hearing before thesecretary at which he or she may contest the terms and conditions
of the cease and desist order. The filing of a notice of request
for reconsideration shall not stay or suspend execution or
enforcement of such cease and desist order.
§16-27A-9. Civil actions and injunctive relief.
(a) Any person who violates any provision of this article,
any permit or any rule or order issued pursuant to this article
shall be subject to a civil penalty not to exceed twenty-five
thousand dollars for each day of such violation, which penalty
shall be recovered in a civil action either in the circuit court
of the county wherein the violation occurs or in the circuit
court of Kanawha County.
(b) The secretary may seek an injunction, or may institute
a civil action against any person who violates any provision of
this article or any permit, legislative rule or order issued
pursuant to this article. In seeking an injunction, it is not
necessary for the secretary to post bond nor to allege or prove
at any stage of the proceeding that irreparable harm will occur
if the injunction is not issued or that there is no adequate
remedy at law. A petition for an injunction filed pursuant to
this section may be filed and relief granted notwithstanding the
fact that all administrative remedies provided for in this
article have not been exhausted or invoked against the person or
persons against whom such relief is sought.
(c) At the request of the secretary, the attorney general,
or the prosecuting attorney of the county in which the violation
occurs, shall assist the secretary in any civil action under this
section.
(d) In any action brought pursuant to the provisions of
this section, the state, or any agency of the state which
prevails, may be awarded costs and reasonable attorney's fees.
§16-27A-10. Regulation of infectious medical waste collectors
and haulers by the public service commission; limitation of
regulation.
(a) On and after the first day of July, one thousand nine
hundred ninety-one, collectors, haulers and transporters of
infectious medical waste who are "common carriers by motor
vehicle," as defined in section two, article one, chapter twenty-
four-a of this code, shall be regulated by the public service
commission in accordance with the provisions of chapter twenty-
four-a and rules and regulations promulgated thereunder. The
rules of the public service commission shall not conflict nor
take precedence over the rules promulgated by the secretary.
(b) The commission shall provide a separate and distinct
category of special certificates of convenience and necessity for
infectious medical waste collectors, haulers and transporters
regulated by this section:
Provided,
That within six months of
the effective date of this article, the commission may issue such
special certificates to existing common carriers of solid waste
who are presently transporting infectious medical waste and who
demonstrate that they are in compliance with the provisions of
this article:
Provided, however,
That such common carriers need
not make any additional demonstration of public convenience and
necessity. Regulation of collectors, haulers and transporters of
medical waste shall be separate and distinct from the regulation
of solid waste collectors, haulers and transporters provided forin section twenty-three, article twenty-six of this chapter.
(c) At any hearing conducted by the public service
commission pertaining to infectious medical collectors, haulers
and transporters, the secretary may appear before the commission
and present evidence.
CHAPTER 26. STATE BENEVOLENT INSTITUTIONS.
ARTICLE 1. CHILDREN'S HOME.
§26-1-1. West Virginia Children's Home
The West Virginia Children's Home, heretofore established,
shall be continued, and shall be managed, directed and controlled
by the state department of health and human resources.
§26-1-2. Admission of children.
The state department of health and human resources shall
admit to the home children surrendered or otherwise placed in its
custody in any manner authorized by law; and the children shall
be kept, maintained and educated therein until they can be placed
by legal authority in suitable homes elsewhere.
26-1-3. Superintendent; establishment of rules.
The secretary of the department of health and human
resources shall appoint a superintendent of the children's home.
The superintendent shall establish and post rules for operation
of the home, subject to the approval of the secretary.
ARTICLE 2. STATE ACUTE CARE AND EMERGENCY HOSPITALS.
§26-2-1. Welch emergency hospital continued; management;
admission guidelines.
The acute care and emergency hospital heretofore established
and known as welch emergency hospital shall be continued and
shall be managed, directed and controlled by the secretary of thedepartment of health and human resources.
The secretary shall prescribe guidelines for the admission
of persons thereto, and shall supervise the business, personnel
and clinical responsibilities of the hospital:
Provided,
That in
prescribing admission guidelines, provisions shall be set forth
for persons unable to pay therefor.
§26-2-2. Supervision by administrator; qualifications of
administrator; clinical director.
(a) The chief executive officer of welch emergency
hospital, and any other acute care or emergency hospital
established under the provisions of this article, shall be the
administrator, who shall have fiscal responsibility of the
hospital and the authority to manage and administer the
financial, business and personnel affairs of the hospital under
the direction of the secretary of the department of health and
human resources.
(b) The administrator shall be a college graduate and have
a minimum of two years' experience in either hospital
administration, health services administration or business
administration with broad knowledge of accounting, purchasing and
personnel practices as related to the rendition of health and
health-related services.
(c) The hospital shall have a clinical director, who shall
have the responsibility for decisions involving clinical and
medical treatment of patients, and who shall be a duly qualified
physician licensed to practice medicine in the state of West
Virginia.
ARTICLE 3. STATE EXTENDED CARE FACILITIES.
§26-3-1. Management by secretary of health and human resources.
The secretary of health and human resources shall manage,
direct, control and govern the Hopemont Health Care Center,
heretofore known as Hopemont State Hospital, Pinecrest Health
Care Center, heretofore known as Pinecrest Hospital, Marion
Health Care Center, heretofore known as Marion Health Care
Hospital, and such other state health care facilities as are or
may hereafter be created by law.
All references in this code or elsewhere in law to Hopemont
Hospital, Pinecrest Hospital and Marion Health Care Hospital
shall be taken and construed to mean and refer respectively to
the Hopemont Health Care Center, the Pinecrest Health Care Center
and the Marion Health Care Center. All references in this code
or elsewhere in law to Fairmont Emergency Hospital shall be taken
and construed to mean and refer to the Marion Health Care Center.
The secretary shall designate the functions of each facility
and prescribe guidelines for the admission of persons thereto,
and shall supervise the business, personnel and clinical
responsibilities of each facility:
Provided,
That in prescribing
admission guidelines, provision shall be set forth for persons
unable to pay therefor.
§26-3-2. Supervision of each facility by administrator;
qualifications of administrator; clinical director.
(a) The chief executive officer of each facility provided
for in this article shall be the administrator, who shall have
fiscal responsibility of the facility and the authority to manage
and administer the financial, business and personnel affairs of
the facility under the direction of the secretary of thedepartment of health and human resources.
(b) The administrator shall be a college graduate and have
a minimum of two years' experience in either hospital
administration, health services administration or business
administration with broad knowledge of accounting, purchasing and
personnel practices as related to the rendition of health and
health-related services.
(c) Each facility provided for in this article shall have
a clinical director, who shall have the responsibility for
decisions involving clinical and medical treatment of patients,
and who shall be a duly qualified physician licensed to practice
medicine in the state of West Virginia.
§26-3-3. Transfer of residents; rules and regulations for
maintenance of patients.
The secretary of the department of health and human
resources may transfer residents between the facilities
administered by the department, except as otherwise provided by
article five, chapter twenty-seven of this code. The secretary
may accept transfer of residents from correctional institutions,
subject to the provisions of chapter twenty-eight of this code.
The secretary shall prescribe guidelines as are necessary
and proper to regulate the proper maintenance of patients in the
facilities administered by the department.
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 1A. MENTAL HEALTH.
§27-1A-2. Authority of the department of health and human
resources.
There shall be a The state department of mental health, tobe known as the department of mental health. It shall be a
corporation and, as such, shall have a seal and may contract and
be contracted with. The department shall consist of a director
of mental health, supervisors of divisions of the department, and
such other employees as are needed to carry out its functions.
first created by chapter one hundred seven, acts of the
Legislature, regular session, one thousand nine hundred
fifty-seven, the duties and functions of which were transferred
to the department of health by chapter one hundred two, acts of
the Legislature, regular session, one thousand nine hundred
seventy-seven, is hereby abolished and the department of health
and human resources created pursuant to the provisions of section
two, article one, chapter five-f of this code, shall have sole
responsibility for the administration of this chapter.
Except where context clearly indicates otherwise, all
references in this chapter to the department of mental health or
the department of health shall be construed to mean the
department of health and human resources and all references to
the commissioner of the department of mental health or the
director of health shall be construed to mean the secretary of
the department of health and human resources. The department
shall supervise and control the state hospitals. state-operated
treatment facilities and the secretary of the department of
health and human resources is vested with all powers and duties
set forth in this chapter formerly held by the commissioner of
the department of mental health and the director of health.
§27-1A-9. Transfer of control, records and property to
department of health and human resources.
The control of the financial, business, personnel and all
other affairs and records of state hospitals state-operated
treatment facilities is hereby transferred from the state board
of control to the department of mental health and, as its chief
executive officer, the director shall, in respect to the control,
management and property of such state hospitals, have the same
rights and powers and shall perform the same duties and functions
as were heretofore exercised or performed by the state board of
control. to the state department of health and human resources.
The title to all property of such state hospitals state-operated
treatment facilities is hereby transferred to and vested in the
department of mental health and human resources.
ARTICLE 2. MENTAL HEALTH FACILITIES.
§27-2-1. State-operated treatment facilities; transfer of
control and property from department of health to department
of health and human resources; civil service coverage.
The state hospitals state-operated treatment facilities
heretofore established at Weston, Spencer, Huntington,
Barboursville, Lakin, Guthrie, Roney's Point, and St. Marys and
Lewisburg shall be continued and known respectively as the Weston
Hospital, Spencer Hospital, Huntington State Hospital,
Barboursville Hospital, Lakin Hospital Health Care Center,
Guthrie Center, Roney's Point Center and Colin Anderson Center.
and the Greenbrier School for Retarded Children. Said state
hospitals and centers facilities shall be managed, directed and
controlled by the department of health and human resources.
Any person employed by the department of mental health who
on the effective date of this article is a classified civilservice employee shall, within the limits contained in section
two ten, article six, of chapter twenty-nine of this code, remain
in the civil service system as a covered employee. The director
secretary of the department of health and human resources is
hereby authorized to bring said hospitals facilities into
structural compliance with appropriate fire and health standards.
All references in this code or elsewhere in law to the "West
Virginia training school" shall be taken and construed to mean
and refer to the "Colin Anderson Center."
The control of the property, records, and financial and
other affairs of state mental hospitals and other state mental
health facilities is hereby transferred from the department of
mental health to the department of health. As the chief
executive officer, the director of health shall, in respect to
the control and management of such state hospitals and other
state mental health facilities, perform the same duties and
functions as were heretofore exercised or performed by the
department of mental health. The title to all property of such
state hospitals and other state facilities is hereby transferred
to and vested in the department of health.
Notwithstanding any other provisions of this code to the
contrary, whenever in this code there is a reference to the
department of mental health, it shall be construed to mean and
shall be a reference to the director of the department of health.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 14. OLDER WEST VIRGINIANS ACT.
§29-14-1. Short title.
This article may be known and cited as the "Older WestVirginians Act."
§29-14-2. Legislative findings; statement of purpose.
(a) The Legislature finds that older West Virginians
constitute a fundamental resource of this state. However, there
are problems confronting the elderly in maintaining their
economic self-sufficiency and personal well-being and in
realizing their maximum potential. Often the expertise,
experience, experience and wisdom of our elderly persons are
underutilized. Means must be found to use their abilities more
effectively for the benefit of all West Virginians.
The number of persons in this state sixty years of age or
older is increasing rapidly, and of these persons, the number of
persons seventy-five years of age or older is expanding at an
even greater rate. Among those persons seventy-five years of age
or older, there is a higher incidence of functional disability.
The social and health problems of the elderly are compounded by
the lack of access to existing services and by the unavailability
of a complete range of services in all areas of the state.
(b) The Legislature hereby declares that it is the policy
of this state to:
(1) Develop and maintain within this state a comprehensive
and coordinated network of program and service planning and
delivery among state and local agencies to more effectively and
efficiently safeguard and enhance the quality of life for our
state's elderly;
(2) Encourage and develop alternative services and forms of
care, within the limits of funds available, that would be
delivered in the community and in the home and that wouldfacilitate access to other services which support independent
living and prevent unnecessary institutionalization;
(3) Give priority in planning services and programs to low-
income, minority and frail older West Virginians;
(4) Involve older West Virginians in the planning and
provision of programs and services which affect them; and
(5) Encourage the collection and dissemination of factual
data and information and the conducting of continuous study and
research concerning the status, needs, resources and problems of
elderly persons.
(c) The Legislature intends, by this article and within the
limits of funds available or appropriated, to provide for the
development and maintenance of a coordinated system of program
and service delivery for West Virginia's elderly citizens through
the reorganization of aging services in the department of health
and human resources, and through the development of cooperative
endeavors among governmental and public and private nonprofit
organizations.
§29-14-3. Definitions.
As used in this article:
(1) "Care management" and "comprehensive assessment" mean
the planning, arrangement for and coordination of appropriate
community-based, in-home services and alternative living
arrangements for the frail elderly, disabled or terminally ill.
"Care management" and "comprehensive assessment" include
assessment of needs, counseling in the development of a case
plan, arrangement for services and on-going monitoring of the
frail elderly, disabled or terminally ill client's situation toensure that needed services are received.
(2) "Care services" means housekeeping, personal care,
chore, escort/transportation, meals, in-home nursing, day care,
respite and/or hospice services.
(3) "Commission" means the state advisory commission on
aging created under the provisions of this article.
(4) "Community care" means a system of community-based, in-
home services and alternative living arrangements in order to
provide a full range of preventive, maintenance and restorative
services for the frail elderly, disabled or terminally ill.
(5) "Department" means the department of health and human
resources.
(6) "Director" means the director of the state office of
aging.
(7) "Disabled" means a person sixty years old or older who
has temporary or permanent impairments which cause him or her to
need or who is likely, in the foreseeable future, to need
community care services.
(8) "Elderly" or "elderly persons" generally means persons
aged sixty years or older, except in the provision of programs or
services wherein an older or younger minimum age limitation is
clearly specified by federal or state law, rule or regulation.
(9) "Frail elderly" means any person sixty years of age or
older, with limitations which restrict the individual's ability
to perform the normal activities of daily living and which impede
individual capacity to live independently.
(10) "Office" means the state office of aging created under
the provisions of this article.
(11) "Secretary" means the secretary of the department of
health and human resources, or his or her designee pursuant to
the provisions of section four, article two, chapter nine of this
code.
(12) "Sliding fee scale" means a fee for community care
services provided based on the frail elderly, disabled or
terminally ill client's ability to pay.
(13) "Unit" means the community care program unit within
the state office of aging.
§29-14-4. State office of aging; responsibilities.
(a) There is hereby created within the department of health
and human resources a state office of aging, hereinafter referred
to as the "office." The office shall carry out the following
responsibilities:
(1) Develop and administer a state plan for aging services;
(2) Encourage, promote and aid in the establishment and
maintenance of local programs and services for the aging, with
emphasis on facilitating a statewide network of comprehensive,
coordinated services, activities and opportunities for elderly
persons. The office may assist local governmental and other
agencies by designing surveys that could be used locally to
determine needs of elderly persons; by recommending the creation
of such services and facilities as appear to be needed; by
serving as a clearinghouse for the collection and distribution of
information on aging; and by assisting organizations and
communities in such other ways as the department may deem
appropriate;
(3) Establish, administer and implement a state program forthe delivery of community care services for the frail elderly,
disabled or terminally ill, based on a sliding fee scale;
(4) Stimulate, inform, educate and assist agencies,
businesses, the community at large and elderly persons themselves
about aging, including needs, resources and opportunities for the
aging and about the role they can play in improving conditions
for the aging;
(5) Study, collect, analyze, maintain, publish and
disseminate factual data and information about the aged and
aging; and
(6) Consult and cooperate with other offices of the
department of health and human resources and other agencies of
state government, and to receive assistance as available
therefrom, in the development of activities and programs of
benefit to elderly persons and on matters relating generally to
the elderly.
(b) In addition to the responsibilities set forth in
subsection (a) of this section, the office shall incorporate the
programs, responsibilities and functions heretofore carried out
by the staff of the state commission on aging and the office of
geriatrics and long-term care of the department of health and
human resources. Any reference elsewhere in this code to the
state commission on aging shall henceforth be deemed to mean the
state office of aging. The office shall function under the
authority of the secretary of the department of health and human
resources, and shall, in addition to the responsibilities set
forth in this section, perform such other responsibilities and
duties as may be assigned by the secretary.
§29-14-5. State office director; staff.
(a) The secretary shall, consistent with state personnel
procedures and in consultation with the state advisory commission
on aging created under section ten of this article, appoint a
director who shall act as the chief administrative officer of the
office, in addition to such other duties as he or she may be
assigned. The director shall be appointed on the basis of his or
her education, training, experience, demonstrated abilities and
interest in the problems of the aged and aging.
(b) Such staff as may be deemed necessary to carry out the
functions of the office shall be appointed by the director,
consistent with state personnel procedures and with the approval
of the secretary. Staff employed by the state commission on
aging, heretofore set forth in this code, and by the office of
geriatrics and long-term care shall, hereafter from the date of
enactment of this article, be considered employees of the office
of aging.
§29-14-6. Programs of services for the aging.
The office shall establish, under the direction of the
secretary, programs of services for the aging. Particular
emphasis shall be given to services designed to foster continued
participation of elderly persons in family and community life and
to prevent, insofar as possible, the onset of dependency and the
need for long-term institutionalization.
Any allocations of appropriations for such programs may be
made contingent upon local appropriations or gifts in money or in
kind for the support of such programs. The county commission of
any county or governing body of any municipality of this statemay appropriate and expend money for establishing and maintaining
such programs. Funds so appropriated by the county commission,
by the governing body of any municipality in this state, or
private gifts or contributions may be contributed from time to
time to any committee or organization approved by the state
office of aging for the purposes authorized by this section.
From time to time the Legislature may appropriate funds on
a matching basis for funds from any other source to be used for
the purposes stated above.
§29-14-7. Designated agency for handling federal programs.
The department, through the state office of aging, shall
constitute the designated state agency for handling all programs
of the federal government relating to the aging requiring action
within the state, which are not the responsibility of another
state agency under the provisions of federal law or which have
not been specifically entrusted to another state agency by the
Legislature. Authority is hereby conferred upon the department to
accept and disburse through the state office of aging any funds
available or which might become available pursuant to the
provisions of this article. The department shall comply with all
regulations and requirements to qualify for and to administer
such federal funds.
The department, through the state office of aging, may
receive and expend appropriate funding, including the state's
share of federal revenue-sharing funds, for the construction,
acquisition and renovation of senior centers.
§29-14-8. Community care program.
A community care program unit is hereby established withinthe state office of aging. The unit shall plan and oversee
implementation of a system of coordinated community care and
support services for the frail elderly, disabled or terminally
ill, based on a sliding fee scale. Such a program shall include,
but not be limited to: care management, comprehensive assessment
and community and in-home care services.
§29-14-9. Records, files and other property.
All records, files and other property in the custody of the
state commission on aging, heretofore set forth in this code, and
to the office of geriatrics and long-term care of the department
of health and human resources shall be turned over to the state
office of aging, herein created under this article, and shall be
continued as part of the records, files and other property
thereof.
§29-14-10. State advisory commission on aging.
There is hereby created the state advisory commission on
aging, hereinafter referred to as the "commission." The
commission shall advise the office and the department in such
matters relating to the elderly as:
(a) The development and implementation of the state plan
for aging services;
(b) The establishment of priorities for programs funded
under the Older Americans Act of 1965, as amended;
(c) The coordination of planning and service delivery of
programs for the elderly and the recommendation of needed changes
in those programs to more effectively and economically serve the
needs of the elderly and support independent living;
(d) The collection and dissemination of information and theconduct of studies and research about the status, needs,
resources and problems of elderly persons; and
(e) Other matters relating to the elderly which the
secretary or the director may refer to it.
§29-14-11. Composition of advisory commission; appointment of
citizen representatives; compensation.
(a) The commission shall consist of sixteen members, as
follows: Six members, herein referred to as government
representatives, who shall be the state superintendent of
schools, the commissioner of the bureau of public health of the
department of health and human resources, the commissioner of the
bureau of community support of the department of health and human
resources, the director of the West Virginia division of
rehabilitation services, the commissioner of the bureau of
employment programs of the department of commerce, labor and
environmental resources, and the insurance commissioner of West
Virginia; and ten additional citizens of the state, herein
referred to as citizen representatives, no more than five of whom
shall belong to the same political party, who have demonstrated
an interest in and knowledge of the problems of the aging.
(b) The governor shall appoint the ten citizen
representatives of the commission by and with the advice and
consent of the Senate. The citizen representatives shall be
appointed for terms of four years each, and until their
successors are appointed and qualified:
Provided,
That the
citizen representatives of the state commission on aging,
heretofore set forth in this code, serving at the time of
enactment of this article, shall be continued as citizenrepresentative members of the state advisory commission on aging
until the expiration of their term of office. Vacancies in the
citizen representative membership shall be filled for the
remainder of the unexpired term in the same manner as the
original appointment.
(c) Each citizen representative, with prior approval of the
director, shall be entitled to receive out of funds appropriated
or available for such purposes, travel and other necessary
expenses actually incurred in the performance of his or her
official duties under the provisions of this article.
§29-14-12. Quorum; election of officers; meetings.
A majority of the members of the commission shall constitute
a quorum for the transaction of business. The commission shall
elect a chairperson, a vice-chairperson, a secretary and such
other officers as it deems necessary. The commission shall meet
at least quarterly each year. If unable to attend a commission
meeting, a government representative may send in his or her place
a designee who shall be considered a member of the commission for
the purposes of obtaining a quorum and acting on behalf of the
government representative.
§29-14-13. Promulgation of rules and procedures.
The commission may adopt rules and procedures to further
govern its proceedings and the department may promulgate rules to
effectuate the purposes and provisions of this article, subject
to the provisions of chapter twenty-nine-a of this code.
ARTICLE 20. WOMEN'S COMMISSION.
§29-20-1. Continuation; membership; appointment and terms of
members; organization; reimbursement for expenses.
The West Virginia commission on the status of women is
hereby abolished and there is hereby continued within the
department of health and human resources the West Virginia
women's commission, to consist of eighteen members, seven of whom
shall be ex officio members, not entitled to vote: The attorney
general, the state superintendent of schools, the commissioner of
labor, the commissioner of the bureau of human resources the
secretary of the department of health and human resources, the
director of the human rights commission, the director of the
division of personnel and the chancellor of the board of
directors of the state college system. Each ex officio member
may designate one representative employed by his or her
department to meet with the commission in his or her absence.
The governor shall appoint the additional eleven members, by and
with the advice and consent of the senate, from among the
citizens of the state. The governor shall designate the chairman
and vice chairman of the commission and the commission may elect
such other officers as it deems necessary. The members shall
serve a term beginning the first day of July, one thousand nine
hundred seventy-seven, three to serve for a term of one year,
four to serve for a term of two years and the remaining four to
serve for a term of three years. The successors of the members
initially appointed as provided herein shall be appointed for a
term of three years each in the same manner as the members
initially appointed under this article, except that any person
appointed to fill a vacancy occurring prior to the expiration of
the term for which his or her predecessor was appointed shall be
appointed for the remainder of such term. Each member shallserve until the appointment and qualification of his or her
successor.
No member may receive any salary for his or her services,
but each may be reimbursed for actual and necessary expenses
incurred in the performance of his or her duties out of funds
received by the commission under section four of this article,
except that in the event the expenses are paid, or are to be
paid, by a third party, the members shall not be reimbursed by
the commission.
After having conducted a performance audit through its joint
committee on government operations, pursuant to section nine,
article ten, chapter four of this code, the Legislature hereby
finds and declares that the West Virginia women's commission
should be continued and reestablished. Accordingly,
notwithstanding the provisions of section four, article ten,
chapter four of this code, the West Virginia women's commission
shall continue to exist until the first day of July, one thousand
nine hundred ninety-eight.