H. B. 2814


(By Delegates Boggs, Beane, Douglas,

Stemple and Compton)


[Introduced March 9, 2001; referred to the

Committee on Government Organization.]




A BILL to repeal article eight, chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section two, article one of said chapter; to amend and reenact section eight, article two of said chapter; and to amend chapter nineteen of said code by adding thereto a new article, designated article thirty, all relating to transferring administration of the donated foods program from the department of health and human resources to the department of agriculture.

Be it enacted by the Legislature of West Virginia:

That article eight, chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section two, article one of said chapter be amended and reenacted;
that section eight, article two, of said chapter be amended and reenacted; and that chapter nineteen of said code be amended by adding thereto a new article, designated article thirty, all to read as follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 1. LEGISLATIVE PURPOSE AND DEFINITIONS.

 §9-1-2. Definitions.
The following words and terms when used in this chapter have the meanings indicated unless the context clearly indicates a different meaning, and any amendment of this section applies to any verdict, settlement, compromise or judgment entered after the effective date of the amendments to this section enacted during the regular session of the Legislature, one thousand nine hundred ninety-five.
(a) The term "department" means the state division of human services.
(b) The term "commissioner" means the commissioner of human services.
(c) The term "federal-state assistance" means and 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 promulgated by the state division of human services, which division rules 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 division of human services 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 has authorized the secretary of agriculture of the United States to distribute to needy persons.
(d) The term "federal assistance" means and includes all forms of aid, care, assistance and services to or on behalf of persons, which are authorized by, and who are authorized to receive the same under and by virtue of, any act of Congress for distribution through the state division of human services, the cost of which is paid entirely out of federal appropriations.
(e) The term "state assistance" means and 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, state division of human services' rules.
(f) The term "welfare assistance" means the three classes of assistance administered by the state division of human services, namely: Federal-state assistance, federal assistance and state assistance.
(g) The term "indigent person" means any person who is domiciled in this state and who is actually in need as defined by department rules and has not sufficient income or other resources to provide for such need as determined by the state division of human services.
(h) The term "domiciled in this state" means being physically present in West Virginia accompanied by an intention to remain in West Virginia for an indefinite period of time, and to make West Virginia his or her permanent home. The state division of human services may by rules supplement the foregoing definition of the term "domiciled in this state", but not in a manner as would be inconsistent with federal laws, rules, and regulations applicable to and governing federal-state assistance.
(i) The term "medical services" means medical, surgical, dental and nursing services, and other remedial services recognized by law, in the home, office, hospital, clinic and any other suitable place, provided or prescribed by persons permitted or authorized by law to give such the services; the services to include drugs and medical supplies, appliances, laboratory, diagnostic and therapeutic services, nursing home and convalescent care and such other medical services and supplies as may be prescribed by the persons.
(j) The term "general relief" means cash or its equivalent in services or commodities expended for care and assistance to an indigent person other than for care in a county infirmary, child shelter or similar institution.
(k) The term "secretary" means the secretary of the department of health and human resources.
(l) The term "estate" means all real and personal property and other assets included within the individual's estate as defined in the state's probate law.
(m) The term "services" means nursing facility services, home and community-based services, and related hospital and prescription drug services for which an individual received medicaid medical assistance.
(n) The term "state medicaid agency" means the division of the department of health and human resources that is the federally designated single state agency charged with administration and supervision of the state medicaid program.
ARTICLE 2. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, AND OFFICE OF COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND RESPONSIBILITIES GENERALLY.
§9-2-8. Information and referral services.

(a) Each local human services office shall compile, maintain and post a current list of charity donated 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 use its existing statewide toll free telephone number to provide emergency food information and to refer needy individuals to local programs that may be able to provide assistance. The department shall publish the telephone number for referrals in the emergency telephone numbers section of local telephone books. The department shall display this telephone number in all its offices that issue food stamps.
CHAPTER 19. AGRICULTURE.

ARTICLE 30. DONATED FOODS.
 §19-30-1. Purpose.
The purpose of this article is to address the widespread and growing problem of hunger in this state by improving the distribution of food to the hungry, providing a means of funding agencies which distribute food on an emergency basis, gathering and disseminating information related to the problem of hunger, assuring that distribution activities are responsive to the needs of local donated food banks, facilitating the creation of donated food banks and ensuring maximum access to food banks.
§19-30-2. Administration of donated foods transferred from department of health and human resources to department of agriculture; commissioner authorized to accept donated funds; employees to be retained.

(a) Effective the first day of July, two thousand one, the department of agriculture is designated as the state agency to receive foods donated by the United States department of agriculture, other federal or state agencies, corporations or private persons or entities; to receive payments for storage and distribution of the donated foods; to distribute the foods to educational or charitable institutions; to allocate funds received relating to the donated foods; and to enter into agreements and take other actions necessary to exercise the authority provided. Effective the first day of July, two thousand one, all responsibility for receiving, storing and distributing donated foods previously assigned to the department of health and human resources is transferred to the department of agriculture. The secretary of the department of health and human resources and the commissioner of agriculture, acting jointly, are empowered to take actions necessary to facilitate an orderly, efficient and economical transfer of related program functions. Effective the first day of July, two thousand one, all unencumbered funds remaining with the department of health and human resources related to the transferred program shall be transferred to the appropriate accounts of the department of agriculture.
(b) The commissioner is authorized to solicit and accept donations, gifts, grants bequests and other funds made available to the department of agriculture from private sources for the donated foods program, and a special revenue account for the receipt of these funds is created in the state treasury. The commissioner is authorized to expend the funds in the special revenue account consistent with the purpose of the program and the purpose for which the donated money is provided. All interest accruing from investment of moneys in the account shall be credited to the account and used for the same purposes as the principal.
(c) Each person employed by the department of health and human resources in the donated foods program shall be given the option of becoming an employee of the department of agriculture or of remaining an employee of the department of health and human resources.
§19-30-3. Donation of food items; exemption from civil and criminal liability.

Any person who makes a good faith donation of prepared or perishable food which appears to be fit for human consumption at the time it is donated to a charitable or nonprofit organization is not liable for damages in any civil action or subject to criminal prosecution for any injury or death due to the condition of such the food unless the injury or death is a direct result of the gross negligence, recklessness or intentional misconduct of the donor.
A charitable or nonprofit organization or an officer, employee or volunteer of the organization that in good faith receives and distributes, without charge, food which appears to be fit for human consumption at the time it is distributed is not liable for damages in any civil action or subject to criminal prosecution for any injury or death due to the condition of such the food unless the injury or death is a direct result of the gross negligence, recklessness or intentional misconduct of the organization or its officers, employees or volunteer workers.
This section applies to all good faith donations of perishable food which is not readily marketable due to appearance, freshness, grade, surplus supply or other conditions.
§19-30-4. Definitions.
In this article, unless the context otherwise requires:
"Agricultural product" means any fowl, animal, vegetable or other item, product or article which is customary food or which is proper food for human consumption.
"Donated food bank" means a nonprofit organization that solicits, stores, or redistributes food products to charitable organizations and individuals for the purpose of feeding needy families and individuals.
"Nonprofit charitable organization" means an organization which is organized and operates for a charitable purpose.
§19-30-5. Authorization of donations; diversion of products by directors to organizations.

A person engaged in the business of processing, distributing or selling any agricultural product may donate, free of charge, any agricultural product to a donated food bank.
To assist in accomplishing the purposes of this section, the director of each department of state government shall divert, whenever possible, surplus agricultural products to organizations operating pursuant to this article.
§19-30-6. Surplus food collection and distribution centers.
The department of agriculture shall continue operation of and shall publicize the services of an information and food collection center. The center shall receive and transmit information concerning available agricultural products and information on each organization desiring or needing agricultural products to be donated. The center shall also collect, receive, handle, store and distribute donated agricultural products. A nonprofit charitable organization which regularly needs agricultural products may be listed with a food collection center to be notified if agricultural products are available.
§19-30-7. Minimum standards for food banks.
In order to qualify as a donated food bank, an organization shall meet all of the following minimum standards:
(a) Have access to storage facilities and refrigeration equipment for the purpose of collecting, receiving, handling, storing and distributing donated agricultural products;
(b) Be incorporated as a nonprofit tax exempt organization and eligible as a charitable organization under the Internal Revenue Code (26 United States code section 501 (c) (3)) or affiliated with a qualified organization;
(c) Maintain records for the proper control of inventory;
(d) Demonstrate the availability of adequate liability insurance to cover the activities conducted pursuant to this article; and
(e) Show local support through funding sources, letters of endorsement and a board of directors which reflects the community and population to be served.
§19-30-8. State surplus buildings and equipment; availability to donated food banks.

The commissioner of the department of administration shall assist a food bank by locating and providing available state surplus buildings or equipment necessary for the operation of a donated food bank for use without charge.
§19-30-9. Effect of article on other nonprofit organizations.
Nothing in this article may restrict or limit the operation of any other nonprofit organization which is engaged in the distribution of agricultural products to nonprofit charitable organizations.
§19-30-10. Application of article to food stamp act.
Consonant with 7 C.F.R. 273.9(c)(1), programs operated in accordance with this article shall complement and not in any way lessen assistance to families and individuals pursuant to the Food Stamp Act of 1977 as amended, (7 U.S.C. 2011 through 7 U.S.C. 2026).
§19-30-11. Donated food bank assistance fund; restriction.
A donated food bank assistance fund, consisting of moneys provided by appropriation, is continued. A donated food bank which meets the minimum standards for food banks may qualify, subject to available moneys, for assistance from this fund for any of its operations.
Assistance granted pursuant to this article shall be administered by the commissioner of agriculture. No more than five percent of the assistance granted to a donated food bank pursuant to this article may be used for administrative purposes.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§19-30 is new; therefore, strike-throughs and underscoring have been omitted.