Senate Bill No. 674
(By Senator Wooton)
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[Introduced March 26, 2001; referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section two, article nine, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section three; to amend and reenact section nine-a, article twenty, chapter thirty-one of said code; and to amend and reenact sections two and three, article two-b, chapter forty-nine of said code, all relating to juvenile detention and correctional facilities and child welfare facilities; providing for promulgation of standards by a date certain for the physical plant, structure, operation and maintenance of detention and correctional facilities by the juvenile facility standards commission; mandating inspections to ascertain compliance with said standards by the governor's committee on crime, delinquency and correction; and providing for specific application of and exemption from the child welfare licensing jurisdiction of the commissioner of human services.

Be it enacted by the Legislature of West Virginia:
That section two, article nine, chapter fifteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section three; that section nine-a, article twenty, chapter thirty-one of said code be amended and reenacted; and that sections two and three, article two-b, chapter forty-nine of said code be amended and reenacted, all to read as follows:

§15-9-2. Facility inspection.

The governor's committee on crime, delinquency and correction shall annually visit and inspect jails, detention facilities, correctional facilities, facilities which may hold juveniles involuntarily or any other juvenile facility which may temporarily house juveniles on a voluntary or involuntary basis for the purpose of compliance with standard promulgated by the juvenile facilities standards commission, pursuant to section nine-a, article twenty, chapter thirty-one of this code and with the Juvenile Justice and Delinquency Prevention Act of 1974, as amended. on the effective date of this section

§15-9-3. Ascertaining compliance with applicable standards in juvenile detention and correctional facilities.

The governor's committee on crime, delinquency and correction shall ascertain the compliance of juvenile detention and juvenile correctional facilities operated by the division of juvenile services, created pursuant to section two, article five-e, chapter forty-nine of this code, with standards for the structure, physical plant, operation and maintenance of the facilities, promulgated by the juvenile facility standards commission, pursuant to section nine-a, article twenty, chapter thirty-one of this code.

§31-20-9a. Juvenile facilities standards commission; purpose; powers; and duties.
The purpose of the commission is to assure that proper minimum standards and procedures are developed for the structure and physical plant of juvenile detention and juvenile correctional facility facilities and their operation, maintenance and management. To this end, the commission shall:
(1) Develop standards for the structure and physical plant, maintenance and operation of juvenile detention and correctional facilities. These standards shall include, but not be limited to, requirements assuring adequate space, lighting and ventilation; fire protection equipment and procedures; provision of specific personal hygiene articles; bedding, furnishings and clothing; food services; appropriate staffing and training; sanitation, safety and hygiene; isolation and suicide prevention; appropriate medical, dental and other health services; indoor and outdoor exercise; appropriate vocational and educational opportunities; rules and discipline; religious services; vocational programs; library services; visitation, mail and telephone privileges; and other standards necessary to assure proper operation.
(2) Propose legislative rules for promulgation pursuant to article three, chapter twenty-nine-a of this code, including, without limitation, the minimum standards for juvenile detention and correctional facilities as provided in subdivision (1) of this section not later than the first day of January, one thousand nine hundred ninety-nine July, two thousand one.
(3) Develop a process for reviewing and updating these standards as necessary to assure that they conform to current law.
(4) Report periodically to the authority to advise and recommend actions to be taken by the authority, if necessary, to implement proper standards in the state's juvenile detention and correctional facilities.

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:
(a) "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.
(b) "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.
(c) "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.
(d) "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.
(e) "Certification" means a statement issued by the commissioner to a family day care facility upon satisfactory inspection, approval and certification that the facility has complied with the applicable rules promulgated by the commissioner.
(f) "Child" means any person under eighteen years of age.
(g) "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.
(h) "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.
(i) "Child welfare agency" means any agency or facility maintained by the state or any county or municipality thereof, or any agency or facility maintained by an individual, firm, corporation, association or organization, public or private, to receive children for care and maintenance or for placement in residential care facilities, including without limitation, private homes, or any facility that provides care for unmarried mothers and their children: Provided, That the term does not include the division of juvenile services, created under section two, article five-e of this chapter, nor any secure facility operated by that division for the housing of juveniles committed to its custody;
(j) "Commissioner" means the commissioner of human services.
(k) "Day care center" means a facility operated by a child welfare agency for the care of thirteen or more children on a nonresidential basis.
(l) "Department" means the state department of human services health and human resources.
(m) "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: Provided, That the term does not include any facility operated by the division of juvenile services, created pursuant to section two, article five-e of this chapter, for the housing of juveniles committed to its custody.
(n) "Family day care home" means a facility which is used to provide nonresidential child care for compensation in 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.
(o) "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 six years of age. No more than four of the total number of children may be under twenty-four months of age.
(p) "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.
(q) "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.
(r) "Group home" means any facility, public or private, which is used to provide residential care for ten or fewer children.
(s) "Group home facility" means any facility, public or private, which is used to provide residential care for eleven or more children:

(t) "License" means the grant of official permission to a facility to engage in an activity which would otherwise be prohibited.
(u) "Registration" means the process by which a family day care home self-certifies compliance with the rules promulgated pursuant to this article.
(v) "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:

(w) "Rule" means a statement issued by the commissioner of the standard to be applied in the various areas of child care.
(x) "Variance" means a declaration that a rule may be accomplished in a manner different from the manner set forth in the rule.
(y) "Waiver" means a declaration that a certain rule is inapplicable in a particular circumstance.

§49-2B-3. Licensure, certification, 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 shall obtain a license from the department.
(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) Any family day care facility which operates in this state, including family day care facilities approved by the department for receipt of funding, shall obtain a statement of certification from the department.
(d) Every family day care home which operates in this state, including family day care homes approved by the department for receipt of funding, shall obtain a certificate of registration from the department.
(e) 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; or

(6) Any secure facility operated by the division of juvenile services, created pursuant to section two, article five-e of this chapter, for housing juveniles committed to its custody.

NOTE: The purpose of this bill is to require the promulgation of standards by July 1, 2001 for the physical plant, structure, operation and maintenance of detention and correctional facilities by the Juvenile Facility Standards Commission. It mandates inspections to ascertain compliance with the standards by the Governors Committee on Crime, Delinquency and Correction. It also provides specific application of and exemption from the child welfare licensing jurisdiction of the Commissioner of Human Services.

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

This section is new; therefore, strike-throughs and underscoring have been omitted.