ENROLLED
Senate Bill No. 2001
(By Senators Tomblin, Mr. President, and Sprouse,
By Request of the Executive)
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[Passed June 10, 2002; in effect from passage.]
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AN ACT to amend and reenact article nine, chapter sixty-four of the
code of West Virginia, one thousand nine hundred thirty-one,
as amended, relating generally to the promulgation of
administrative rules by the various executive or
administrative agencies and the procedures relating thereto;
continuing rules previously promulgated by state agencies and
boards; legislative mandate or authorization for the
promulgation of certain legislative rules; authorizing certain
of the agencies to promulgate certain legislative rules in the
form that the rules were filed in the state register;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the legislative rule-making review committee;
authorizing certain of the agencies to promulgate certain
legislative rules as amended by the Legislature; authorizing
certain of the agencies to promulgate certain legislative
rules with various modifications presented to and recommended by the legislative rule-making review committee and as amended
by the Legislature; authorizing board of accountancy to
promulgate legislative rule relating to board and rules of
professional conduct; authorizing commissioner of agriculture
to promulgate legislative rule relating to animal disease
control; authorizing commissioner of agriculture to promulgate
legislative rule relating to state aid for fairs and
festivals; authorizing commissioner of agriculture to
promulgate legislative rule relating to schedule of charges
for inspection services--fruit; authorizing commissioner of
agriculture to promulgate legislative rule relating to
controlled atmosphere for storage of apples; authorizing
athletic commission to promulgate legislative rule relating to
commission; authorizing auditor to promulgate legislative rule
relating to transaction fee and rate structure; authorizing
contractor licensing board to promulgate legislative rule
relating to complaints; authorizing board of licensed
dietitians to promulgate legislative rule relating to
licensure and renewal requirements; authorizing board of
licensed dietitians to promulgate legislative rule relating to
code of professional ethics; authorizing governor's committee
on crime, delinquency and correction to promulgate legislative
rule relating to protocol for law-enforcement response to
domestic violence; authorizing human rights commission to promulgate legislative rule relating to waiver of rights under
West Virginia human rights act; authorizing human rights
commission to promulgate legislative rule relating to
definition of employee under West Virginia human rights act;
authorizing board of examiners of land surveyors to promulgate
legislative rule relating to rules and minimum standards for
practice of land surveying in West Virginia; authorizing board
of examiners of land surveyors to promulgate legislative rule
relating to mandatory continuing education for land surveyors;
authorizing board of optometry to promulgate legislative rule
relating to board; authorizing board of optometry to
promulgate legislative rule relating to expanded prescriptive
authority; authorizing board of optometry to promulgate
legislative rule relating to schedule of fees; authorizing
board of pharmacy to promulgate legislative rule relating to
board; authorizing board of pharmacy to promulgate legislative
rule relating to continuing education for licensure of
pharmacists; authorizing radiologic technology board of
examiners to promulgate legislative rule relating to board;
authorizing real estate appraiser licensing and certification
board to promulgate legislative rule relating to requirements
for licensure and certification; authorizing real estate
appraiser licensing and certification board to promulgate
legislative rule relating to renewal of licensure or certification; authorizing board of examiners for registered
professional nurses to promulgate legislative rule relating to
requirements for registration and licensure; authorizing board
of examiners for registered professional nurses to promulgate
legislative rule relating to fees; authorizing secretary of
state to promulgate legislative rule relating to use of
electronic signatures by state agencies; authorizing secretary
of state to promulgate legislative rule relating to registry
requirements; authorizing secretary of state to promulgate
legislative rule relating to uniform commercial code, revised
article nine; repealing a secretary of state legislative rule
relating to use of digital signatures, state certification
authority and state repository; authorizing board of social
work examiners to promulgate legislative rule relating to
qualifications for licensure as social worker; authorizing
board of social work examiners to promulgate legislative rule
relating to fee schedule; authorizing board of examiners for
speech-language pathology and audiology to promulgate
legislative rule relating to licensure of speech-language
pathology and audiology; and authorizing board of veterinary
medicine to promulgate legislative rule relating to
registration of veterinary technicians.
Be it enacted by the Legislature of West Virginia:
That article nine, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be
amended and reenacted to read as follows:
ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO
PROMULGATE LEGISLATIVE RULES.
§64-9-1. Board of accountancy.
The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, under the authority
of section five, article nine, chapter thirty of this code,
modified by the board of accountancy to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-eighth day of November, two thousand one,
relating to the board of accountancy (board rules and rules of
professional conduct, 1 CSR 1), is authorized.
§64-9-2. Commissioner of agriculture.
(a) The legislative rule filed in the state register on the
twenty-fifth day of July, two thousand one, authorized under the
authority of section four, article one, chapter nineteen of this
code, modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the sixteenth day of August, two
thousand one, relating to the commissioner of agriculture (animal
disease control, 61 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand one, authorized under the authority of section eleven, article seven, chapter nineteen of
this code, modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-seventh day of
September, two thousand one, relating to the commissioner of
agriculture (state aid for fairs and festivals, 61 CSR 3), is
authorized.
(c) The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand one, authorized under the
authority of section ten, article two, chapter nineteen of this
code, modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the sixteenth day of August, two
thousand one, relating to the commissioner of agriculture (schedule
of charges for inspection services: fruit, 61 CSR 8B), is
authorized.
(d) The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand one, authorized under the
authority of section three, article five-a, chapter nineteen of
this code, modified by the commissioner of agriculture to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the sixteenth day of August, two
thousand one, relating to the commissioner of agriculture
(controlled atmosphere storage of apples, 61 CSR 8E), is authorized.
§64-9-3. Athletic commission.
The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, under the authority
of section twenty-four, article five-a, chapter twenty-nine of this
code, modified by the athletic commission to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the fourteenth day of January, two thousand two,
relating to the athletic commission (administrative rule of the
commission, 177 CSR 1), is authorized.
§64-9-4. Auditor.
The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand one, authorized under the
authority of section ten-c, article three, chapter twelve of this
code, modified by the auditor to meet the objections of the
legislative rule-making review committee and refiled in the state
register on the twenty-sixth day of September, two thousand one,
relating to the auditor (transaction fee and rate structure, 155
CSR 4), is authorized.
§64-9-5. Contractor licensing board.
The legislative rule filed in the state register on the sixth
day of June, two thousand one, under the authority of section
fourteen, article eleven, chapter twenty-one of this code, modified
by the contractor licensing board to meet the objections of the legislative rule-making review committee and refiled in the state
register on the ninth day of August, two thousand one, relating to
the contractor licensing board (West Virginia contractor licensing
board - complaints, 28 CSR 3), is authorized with the amendments
set forth below:
On page 5, after subsection 6.7 by adding a new section 7, to
read as follows:
"§28-3-7. Alternate dispute resolution.
7.1 The board may on its own motion or by stipulation of the
parties refer any complaint to mediation: Provided, That
complaints demonstrating probable cause of the existence of
imminent safety and/or health hazards may not be referred to
mediation.
7.2 The board may maintain a list of mediators with expertise
in professional and occupational licensing matters or may obtain a
list of qualified mediators from the West Virginia center for
dispute resolution or the West Virginia state bar mediator referral
service. Division staff may be utilized to prepare any mediation
agreement.
7.3 A notice of the mediation must be provided to the parties
by certified mail at least twenty days in advance of the mediation
date. The notice must contain the time, date and location of the
mediation and the issues to be mediated.
7.4 The mediation is not considered a proceeding open to the public and any reports and records introduced at the mediation are
not part of the public record. The mediator and all participants in
the mediation shall maintain and preserve the confidentiality of
all proceedings and records. The mediator may not be subpoenaed or
called to testify or otherwise be subject to process requiring
disclosure of confidential information in any proceeding relating
to or arising out of the complaint matter mediated: Provided, That
any confidentiality agreement and any written agreement made and
signed by the parties as a result of the mediation may be used in
any proceeding subsequently instituted to enforce the written
agreement. The agreement may be used in other proceedings if the
parties agree to the use in writing.
7.5 The written agreement made and signed by the parties as a
result of the mediation is binding and must list the issues
resolved, the corrective actions, if any, agreed to, with time
frames and any issues not resolved at the mediation.
7.6 A mediated agreement under the provisions of this section
does not waive a contractor's potential liability for board
disciplinary action if the board determines that the contractor has
violated any provision of West Virginia code §21-11-1, et seq., or
legislative rules promulgated pursuant to that article.
7.7 Any issues not resolved at mediation are returned to the
board for formal hearing pursuant to the provisions of section 6 of
this rule.";
And,
By renumbering the remaining section of the rule.
§64-9-6. Board of licensed dietitians.
(a) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, under the authority
of section four, article thirty-five, chapter thirty of this code,
modified by the board of licensed dietitians to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the sixteenth day of October, two thousand one,
relating to the board of licensed dietitians (licensure and renewal
requirements, 31 CSR 1), is authorized with the following
amendments:
On page three, section nine, section 9.1.6, after the words
"confidential communication" by inserting the words "with a client
or patient"; and,
On page three, beginning with section 9.1.7., by striking out
the remainder of the rule and inserting in lieu thereof the
following:
9.1.7. Demonstrated a lack of professional competence to
practice medical nutrition therapy or other nutrition or dietetic-
related services with a reasonable degree of skill and safety for
patients;
9.1.8. Been convicted of or found guilty of a crime in any
jurisdiction which directly relates to the practice of medical nutrition therapy or other nutrition or dietetic-related services.
A plea of nolo contendere may be considered conviction for the
purposes of this rule;
9.1.9. Failed to report to the Board any person whom the
licensee knows is in violation of this rule or of provisions of
article thirty-five of chapter thirty of the West Virginia code;
9.1.10. Aided, assisted, procured or advised any unlicensed
person to practice as a licensed dietitian contrary to this rule or
provisions of article thirty-five of chapter thirty of the West
Virginia code;
9.1.11. Failed to perform any statutory or legal obligation
placed upon a licensed dietitian;
9.1.12. Made or filed a report which the licensee knows to be
false, or intentionally or negligently failed to file a report or
record required by state or federal law;
9.1.13. Paid or received any commission, bonus, rebate or
other financial incentive, or engaged in any split-fee arrangement
with any organization, agency or person, for referring patients to
providers of health care goods and services, including, but not
limited to, hospitals, nursing homes, clinical laboratories, renal
dialysis facilities or pharmacies;
9.1.14. Exercised influence on a patient or client for
purposes of exploiting for financial gain or engaging in sexual
activity;
9.1.15. Failed to keep written records justifying the course
of treatment of the patient, including, but not limited to, patient
histories, examination results and treatment;
9.1.16. Engaged in false or deceptive advertising;
advertised, practiced or attempted to practice under a name other
than his or her own; charged or collected any fee for any type of
services rendered within forty-eight (48) hours of the initial
visit, if the licensee advertised free consultation or treatment;
9.1.17. Charged an excessive or unconscionable fee. If the
Board finds that an excessive or unconscionable fee has been
charged and collected, the Board may require the licensee to reduce
or reimburse the fee. Factors to be considered in determining the
reasonableness of a fee include the following:
9.1.17.1. The time and effort required;
9.1.17.2. The novelty and difficulty of the procedure or
treatment;
9.1.17.3. The skill required to perform the procedure or
treatment properly;
9.1.17.4. Any requirements or conditions imposed by the
patient or circumstances;
9.1.17.5. The nature and length of the professional
relationship with the patient;
9.1.17.6. The experience, reputation and ability of the
licensee; and
9.1.17.7. The nature of the circumstances under which the
services are provided."
(b) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, under the authority
of section four, article thirty-five, chapter thirty of this code,
modified by the board of licensed dietitians to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the sixteenth day of October, two thousand one,
relating to the board of licensed dietitians (code of professional
ethics, 31 CSR 2), is authorized with the following amendment:
On page one, section two, by striking out subsection 2.5 in
its entirety.
§64-9-7. Governor's committee on crime, delinquency and correction.
The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, authorized under the
authority of section nine, article two-a, chapter forty-eight of
this code, modified by governor's committee on crime, delinquency
and correction to meet the objections of the legislative rule-
making review committee and refiled in the state register on the
second day of October, two thousand one, relating to the governor's
committee on crime, delinquency and correction (protocol for law-
enforcement response to domestic violence, 149 CSR 3), is
authorized.
§64-9-8. Human rights commission.
(a) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, under the authority
of section eight, article eleven, chapter five of this code,
modified by the human rights commission to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the fifteenth day of January, two thousand two,
relating to the human rights commission (waiver of rights under the
West Virginia human rights act, 77 CSR 6), is authorized.
(b) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, under the authority
of section eight, article eleven, chapter five of this code,
modified by the human rights commission to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the fifteenth day of January, two thousand two,
relating to the human rights commission (definition of employee
under the West Virginia human rights act, 77 CSR 7), is authorized.
§64-9-9. Board of examiners of land surveyors.
(a) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, under the authority
of section four, article thirteen-a, chapter thirty of this code,
modified by the board of examiners of land surveyors to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-sixth day of November,
two thousand one, relating to the board of examiners of land surveyors (rules and minimum standards for the practice of land
surveying in West Virginia, 23 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, under the authority
of section four, article thirteen-a, chapter thirty of this code,
modified by the board of examiners of land surveyors to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-sixth day of November,
two thousand one, relating to the board of examiners of land
surveyors (mandatory continuing education for land surveyors, 23
CSR 2), is authorized.
§64-9-10. Board of optometry.
(a) The legislative rule filed in the state register on the
eighteenth day of July, two thousand one, under the authority of
section three, article eight, chapter thirty of this code, modified
by the board of optometry to meet the objections of the legislative
rule-making review committee and refiled in the state register on
the nineteenth day of November, two thousand one, relating to the
board of optometry (rules of the board, 14 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, authorized under the
authority of sections two-a and two-b, article eight, chapter
thirty of this code, modified by the board of optometry to meet the
objections of the legislative rule-making review committee and refiled in the state register on the seventh day of January, two
thousand two, relating to the board of optometry (expanded
prescriptive authority, 14 CSR 2), is authorized.
(c) The legislative rule filed in the state register on the
eighteenth day of July, two thousand one, authorized under the
authority of section three, article eight, chapter thirty of this
code, modified by the board of optometry to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the twentieth day of September, two thousand one,
relating to the board of optometry (schedule of fees, 14 CSR 5), is
authorized.
§64-9-11. Board of pharmacy.
(a) The legislative rule filed in the state register on the
tenth day of October, two thousand one, authorized under the
authority of section nine-a, article five, chapter thirty of this
code, modified by the board of pharmacy to meet the objections of
the legislative rule-making review committee and refiled in the
state register on the eleventh day of January, two thousand two,
relating to the board of pharmacy (rules of the board of pharmacy,
15 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the
tenth day of October, two thousand one, authorized under the
authority of section nine, article five, chapter thirty of this
code, modified by the board of pharmacy to meet the objections of the legislative rule-making review committee and refiled in the
state register on the eleventh day of January, two thousand two,
relating to the board of pharmacy (continuing education for the
licensure of pharmacists, 15 CSR 3), is authorized.
§64-9-12. Radiologic technology board of examiners.
The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand one, under the authority of
section five, article twenty-three, chapter thirty of this code,
modified by the board of examiners of radiologic technology to meet
the objections of the legislative rule-making review committee and
refiled in the state register on the twenty-first day of August,
two thousand one, relating to the board of examiners of radiologic
technology (rules of the board, 18 CSR 1), is authorized.
§64-9-13. Real estate appraiser licensing and certification board.
(a) The legislative rule filed in the state register on the
second day of July, two thousand one, under the authority of
section nine, article thirty-eight, chapter thirty of this code,
modified by the real estate appraiser licensing and certification
board to meet the objections of the legislative rule-making review
committee and refiled in the state register on the fifteenth day of
August, two thousand one, relating to the real estate appraiser
licensing and certification board (requirements for licensure and
certification, 190 CSR 2), is authorized with the following
amendment:
On page twenty-nine, section 14.1, by striking out "2001" and
inserting in lieu thereof "2002".
(b) The legislative rule filed in the state register on the
second day of July, two thousand one, under the authority of
section nine, article thirty-eight, chapter thirty of this code,
modified by the real estate appraiser licensing and certification
board to meet the objections of the legislative rule-making review
committee and refiled in the state register on the fifteenth day of
August, two thousand one, relating to the real estate appraiser
licensing and certification board (renewal of licensure or
certification, 190 CSR 3), is authorized with the following
amendment:
On page six, section 8.1, by striking out "2001" and inserting
in lieu thereof "2002".
§64-9-14. Board of examiners of registered professional nurses.
(a) The legislative rule filed in the state register on the
thirtieth day of July, two thousand one, authorized under the
authority of section four, article seven, chapter thirty of this
code, modified by the board of examiners for registered
professional nurses to meet the objections of the legislative rule-
making review committee and refiled in the state register on the
twenty-ninth day of November, two thousand one, relating to the
board of examiners for registered professional nurses (requirements
for registration and licensure, 19 CSR 3), is authorized with the following amendment:
On page twenty-one, section 14.1.ii, following the words
"failed to disclose", by striking out the words "to the board" and
inserting in lieu thereof the words "information when required by
the board concerning".
(b) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, authorized under the
authority of section four, article seven, chapter thirty of this
code, relating to the board of examiners for registered
professional nurses (fees, 19 CSR 12), is authorized.
§64-9-15. Secretary of state.
(a) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand one, authorized under the
authority of section three, article three, chapter thirty-nine-a of
this code, modified by the secretary of state to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the tenth day of October, two
thousand one, relating to the secretary of state (use of digital
signatures, state certification authority and state repository, 153
CSR 30), is authorized.
(b) The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand one, authorized under the
authority of section four hundred two, article two, chapter forty-
eight of this code, modified by the secretary of state to meet the objections of the legislative rule-making review committee and
refiled in the state register on the second day of November, two
thousand one, relating to the secretary of state (registry
requirements, 153 CSR 32), is authorized.
(c) The legislative rule filed in the state register on the
twenty-sixth day of July, two thousand one, authorized under the
authority of section five hundred twenty-six, article nine, chapter
forty-six of this code, modified by the secretary of state to meet
the objections of the legislative rule-making review committee and
refiled in the state register on the fifteenth day of January, two
thousand two, relating to the secretary of state (uniform
commercial code, revised article nine, 153 CSR 35), is authorized.
(d) The legislative rule effective the first day of April, one
thousand nine hundred ninety-nine, authorized under the authority
of section four, article five, chapter thirty-nine of this code
(use of digital signatures, state certification authority and state
repository, 153 CSR 31), is repealed.
§64-9-16. Board of social work examiners.
(a) The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand one, under the authority of
section three, article thirty, chapter thirty of this code,
modified by the board of social work examiners to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the eleventh day of October, two thousand one, relating to the board of social work examiners
(qualifications for licensure as a social worker, 25 CSR 1), is
authorized.
(b) The legislative rule filed in the state register on the
twenty-fourth day of July, two thousand one, under the authority of
section three, article thirty, chapter thirty of this code,
relating to the board of social work examiners (fee schedule, 25
CSR 3), is authorized.
§64-9-17. Board of examiners for speech-language pathology and
audiology.
The legislative rule filed in the state register on the
thirtieth day of July, two thousand one, under the authority of
section ten, article thirty-two, chapter thirty of this code,
modified by the board of examiners for speech-language pathology
and audiology to meet the objections of the legislative rule-making
review committee and refiled in the state register on the
fourteenth day of December, two thousand one, relating to the board
of examiners for speech-language pathology and audiology (licensure
of speech-language pathology and audiology, 29 CSR 1), is
authorized.
§64-9-18. Board of veterinary medicine.
The legislative rule filed in the state register on the
thirty-first day of August, two thousand one, authorized under the
authority of section four, article ten, chapter thirty of this code, modified by the board of veterinary medicine to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the twenty-sixth day of December,
two thousand one, relating to the board of veterinary medicine
(registration of veterinary technicians, 26 CSR 3), is authorized
with the amendments set forth below:
On page two, section three, subsection 3.4, subdivision b.,
following the words "convicted of a felony", by striking out the
words "or other crime involving moral turpitude" and inserting in
lieu thereof the words "offense relating to controlled substances";
On page two, section three, subsection 3.7, following the
words "office of the veterinary facility", by striking out the
words "of the person to whom it is issued" and inserting in lieu
thereof the words "where the veterinary technician is employed";
On page three, section three, subsection 3.10, subdivision h.,
following the words "has an adjudication of", by striking out the
word "insanity" and inserting in lieu thereof the words "mental
incompetency;";
On page five, section 3.14.1, line three, after the words
"such registration" by inserting the words "without examination";
On page five, section 3.14.1, line four, after the words
"registration ended" by deleting the period and inserting the words
"by providing to the Board:
a. Proof of employment under the direct supervision of a licensed veterinarian during each of the years not renewed.
b. Proof of having met the continuing education requirement of
a minimum of six hours of classroom continuing education in an
approved program during each of the years not renewed. Each year's
continuing education is to renew for the subsequent year.
c. Payment of all delinquent fees from the last renewal date
to the current renewal period.";
And,
On page 6, section 14.2, after the words "the registration
examinations." by striking out the remainder of the subdivision.