Senate Bill No. 125

(By Senators Tomblin (Mr. President) and Boley

By Request of the Executive)

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[Introduced January 24, 1996; referred to the Committee on Health and Human Resources; and then to the Committee on Finance.]
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A BILL to amend and reenact sections two, three, five and six, article two-b, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to duties of the department of human services for the welfare of children; and definitions.

Be it enacted by the Legislature of West Virginia:
That sections two, three, five and six, article two-b, chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2B. DUTIES OF COMMISSIONER OF HUMAN SERVICES FOR CHILD WELFARE.
§49-2B-2. Definitions.
As used in this article, unless the context otherwise requires:
"Approval" means a finding by the commissioner that a facility operated by the state has met the requirements set forth in the rules promulgated pursuant to this article.
"Certificate of approval" means a statement of the commissioner that a facility operated by the state has met the requirements set forth in the rules promulgated pursuant to this article.
"Certificate of license" means a statement issued by the commissioner authorizing an individual, corporation, partnership, voluntary association, municipality or county, or any agency thereof, to provide specified services for a limited period of time in accordance with the terms of the certificate.
"Certificate of registration" means a statement issued by the commissioner to a family day care home upon receipt of a self-certification statement of compliance with the rules promulgated pursuant to the provisions of this article.
"Child" means any person under eighteen years of age.
"Child care" means responsibilities assumed and services performed in relation to a child's physical, emotional, psychological, social and personal needs and the consideration of the child's rights and entitlements.
"Child placing agency" means a child welfare agency organized for the purpose of placing children in private family homes for foster care or for adoption. The function of a child placing agency may include the investigation and certification of foster family homes and foster family group homes as provided in this chapter. The function of a child placing agency may also include the supervision of children who are sixteen or seventeen years old and living in unlicensed residences.
"Commissioner" means the commissioner of human services.
"Day care center" means a facility operated by a child welfare agency for the care of seven thirteen or more children on a nonresidential basis.
"Department" means the state department of human services.
"Facility" means a place or residence, including personnel, structures, grounds and equipment used for the care of a child or children on a residential or other basis for any number of hours a day in any shelter or structure maintained for that purpose.
"Family day care home" means a facility which is used to provide nonresidential child care provided for compensation in a home other than the child's own home. The provider may care for four to six children, including children who are living in the household, who are under six years of age. No more than two of the total number of children may be under twenty-four months of age.
"Family day care facility" means any facility which is used to provide nonresidential child care for compensation for seven to twelve children, including children who are living in the household, who are under ten years of age.
"Foster family group home" means a private residence which is used for the care on a residential basis of six, seven or eight children who are unrelated by blood, marriage, or adoption to any adult member of the household.
"Foster family home" means a private residence which is used for the care on a residential basis of no more than five children who are unrelated by blood, marriage, or adoption to any adult member of the household.
"Group home" means any facility, public or private, which is used to provide residential care for ten or fewer children.
"Group home facility" means any facility, public or private, which is used to provide residential care for eleven or more children.
"License" means the grant of official permission to a facility to engage in an activity which would otherwise be prohibited.
"Registration" means the process by which a family day care home self-certifies compliance with the rules promulgated pursuant to this article.
"Residential child care" or "child care on a residential basis" means child care which includes the provision of nighttime shelter and the personal discipline and supervision of a child by guardians, custodians or other persons or entities on a continuing or temporary basis.
"Rule" means a statement issued by the commissioner of the standard to be applied in the various areas of child care.
"Variance" means a declaration that a rule may be accomplished in a manner different from the manner set forth in the rule.
"Waiver" means a declaration that a certain rule is inapplicable in a particular circumstance.
§49-2B-3. License, approval and registration requirements.

(a) Any person, corporation, or child welfare agency other than a state agency, which operates a residential child care facility, a child placing agency or, a day care center or a family day care facility shall have a license.
(b) Any residential child care facility, day care center or any child placing agency operated by the state shall obtain approval of its operations from the commissioner. Such facilities and placing agencies shall maintain the same standards of care applicable to licensed facilities, centers or placing agencies of the same category.
(c) Every family day care home shall have a certificate of registration. Family day care homes approved by the department of human services for receipt of funding shall automatically receive a certificate of registration be registered.
(d) This section does not apply to:
(1) A kindergarten, preschool or school education program which is operated by a public school or which is accredited by the state department of education, or any other kindergarten, preschool or school programs which operate with sessions not exceeding four hours per day for any child;
(2) An individual or facility which offers occasional care of children for brief periods while parents are shopping, engaging in recreational activities, attending religious services or engaging in other business or personal affairs;
(3) Summer recreation camps operated for children attending sessions for periods not exceeding thirty days;
(4) Hospitals or other medical facilities which are primarily used for temporary residential care of children for treatment, convalescence or testing; or
(5) Persons providing family day care solely for children related to them.
§49-2B-5. Penalties; injunctions.

(a) Any individual or corporation which operates a child welfare agency, residential child care facility or, day care center or family day care facility without a license when a license is required is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by imprisonment in jail not exceeding one year, or a fine of not more than five hundred dollars, or both fined and imprisoned.
(b) Where a violation of this article or a rule or regulation promulgated by the commissioner may result in serious harm to children under care, the commissioner may seek injunctive relief against any person, corporation, child welfare agency, child placing agency, day care center, family day care facility, family day care home or governmental official through proceedings instituted by the attorney general, or the appropriate county prosecuting attorney, in the circuit court of Kanawha County or in the circuit court of any county where the children are residing or may be found.
§49-2B-6. Conditions of licensure, approval and registration.

(a) A license or approval is effective for a period of two years from the date of issuance, unless revoked or modified to provisional status based on evidence of a failure to comply with the provisions of this article or any rules and regulations promulgated pursuant to this article. The license or approval shall be reinstated upon application to the commissioner and a determination of compliance.
A certificate of registration is effective for a period of two years from the date of issuance, unless revoked based on evidence of a failure to comply with the provisions of this article or any rules and regulations promulgated pursuant to this article. The certificate of registration shall be reinstated upon application to the commissioner, including a statement of assurance of continued compliance with the rules and regulations promulgated pursuant to this article.
The license, approval or registration issued under this article is not transferable and applies only to the facility and its location stated in the application. The license or approval shall be publicly displayed, except family day care homes, family day care facilities, foster family homes, foster family group homes and group homes shall be required to display licenses or registration certificates upon request rather than by posting.
(b) A provisional license or approval may be issued as:
(i) An initial license or approval to a new facility which has been unable to demonstrate full compliance because the facility is not fully operational; or
(ii) A temporary license or approval to an established licensed facility which is temporarily unable to conform to the provisions of this article or the rules and regulations promulgated hereunder.
A provisional license or approval shall expire six months from the date of issuance and may be reinstated no more than two times. The issuance of a provisional license or approval shall be contingent upon the submission to the commissioner of an acceptable plan to overcome identified deficiencies within the period of the provisional license or approval. Provisional certificates of registration shall be issued to family day care homes.
(c) The commissioner, as a condition of issuing a license, registration or approval, may:
(i) Limit the age, sex or type of problems of children allowed admission to a particular facility;
(ii) Prohibit intake of any children; or
(iii) Reduce the number of children which the agency or facility operated by the agency is licensed, approved or registered to receive.





NOTE: The purpose of this bill is to allow licensure of a "family day care facility" permitting the care of seven to twelve children in a home. This licensure will preclude treatment of such homes as "day care centers," but will impose more standards that the requirement of registration for "family day care homes."

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.