Senate Bill No. 344
(By Senator Bailey)
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[Introduced January 24, 2003; referred to the Committee on
Government Organization; and then to the Committee on Finance.]
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A BILL to amend and reenact section two, article one, chapter
five-f of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section one,
article two of said chapter; to further amend said article by
adding thereto a new section, designated section seven; to
amend and reenact section two-a, article seven, chapter six of
said code; to amend and reenact section two, article one,
chapter nine of said code; to amend and reenact section one-a,
article two of said chapter; to amend and reenact section two,
article one, chapter sixteen of said code; to amend and
reenact section seven, article five-p of said chapter; to
amend and reenact section five, article five-s of said
chapter; to amend and reenact section three, article twenty-
two-a of said chapter; to amend and reenact section three,
article twenty-nine-d of said chapter; to amend and reenact sections two and three, article twenty-nine-e of said chapter;
to amend and reenact section two, article ten-k, chapter
eighteen of said code; to amend and reenact section two,
article twenty-five-b, chapter thirty-three of said code; to
amend and reenact section twenty-nine, article twenty-five-d
of said chapter; to amend article one, chapter forty-eight of
said code by adding thereto a new section, designated section
two hundred twenty-a; to amend and reenact section two hundred
thirty-six of said article; to amend and reenact sections five
hundred one, five hundred two and five hundred three, article
twenty-six of said chapter; to amend and reenact section four,
article one, chapter forty-nine of said code; to amend and
reenact sections one, four and five, article four of said
chapter; to amend and reenact sections two, five and six,
article four-a of said chapter; to amend and reenact section
five, article five-d of said chapter; and to amend and reenact
sections one and thirty, article seven of said chapter, all
relating to dividing the department of health and human
resources into the department of health and the department of
human resources.
Be it enacted by the Legislature of West Virginia:
That section two, article one, chapter five-f of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that section one, article two of said chapter be amended and reenacted; that said article be further
amended by adding thereto a new section, designated section seven;
that section two-a, article seven, chapter six of said code be
amended and reenacted; that section two, article one, chapter nine
of said code be amended and reenacted; that section one-a, article
two of said chapter be amended and reenacted; that section two,
article one, chapter sixteen of said code be amended and reenacted;
that section seven, article five-p of said chapter be amended and
reenacted; that section five, article five-s of said chapter be
amended and reenacted; that section three, article twenty-two-a of
said chapter be amended and reenacted; that section three, article
twenty-nine-d of said chapter be amended and reenacted; that
sections two and three, article twenty-nine-e of said chapter be
amended and reenacted; that section two, article ten-k, chapter
eighteen of said code be amended and reenacted; that section two,
article twenty-five-b, chapter thirty-three of said code be amended
and reenacted; that section twenty-nine, article twenty-five-d of
said be amended and reenacted; that section two hundred thirty-six,
article one, chapter forty-eight of said code be amended and
reenacted; that said article be further amended by adding thereto
a new section, designated section two hundred twenty-a; that
sections five hundred one, five hundred two and five hundred three,
article twenty-six of said chapter be amended and reenacted; that
section four, article one, chapter forty-nine of said code be amended and reenacted; that sections one, four and five, article
four of said chapter be amended and reenacted; that sections two,
five and six, article four-a of said chapter be amended and
reenacted; that section five, article five-d of said chapter be
amended and reenacted; and that sections one and thirty, article
seven of said chapter be amended and reenacted, all to read as
follows:
CHAPTER 5F. ORGANIZATION OF THE EXECUTIVE BRANCH
OF STATE GOVERNMENT.
ARTICLE 1. GENERAL PROVISIONS.
§5F-1-2. Executive departments; offices of secretary.
(a) There are created within the executive branch of the state
government the following departments:
(1) Department of administration;
(2) Department of education and the arts;
(3) Department of environmental protection;
(4) Department of health; and human resources
(5) Department of military affairs and public safety;
(6) Department of tax and revenue; and
(7) Department of transportation; and
(8) Department of human resources.
(b) Each department will be is headed by a secretary appointed
by the governor with the advice and consent of the Senate. Each
secretary serves at the will and pleasure of the governor.
ARTICLE 2. TRANSFER OF AGENCIES AND BOARDS.
§5F-2-1. Transfer and incorporation of agencies and boards; funds.
(a) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
administration:
(1) Building commission provided for in article six, chapter
five of this code;
(2) Public employees insurance agency and public employees
insurance agency advisory board provided for in article sixteen,
chapter five of this code;
(3) Governor's mansion advisory committee provided for in
article five, chapter five-a of this code;
(4) Commission on uniform state laws provided for in article
one-a, chapter twenty-nine of this code;
(5) Education and state employees grievance board provided for
in article twenty-nine, chapter eighteen of this code and article
six-a, chapter twenty-nine of this code;
(6) Board of risk and insurance management provided for in
article twelve, chapter twenty-nine of this code;
(7) Boundary commission provided for in article twenty-three,
chapter twenty-nine of this code;
(8) Public defender services provided for in article twenty-one, chapter twenty-nine of this code;
(9) Division of personnel provided for in article six, chapter
twenty-nine of this code;
(10) The West Virginia ethics commission provided for in
article two, chapter six-b of this code; and
(11) Consolidated public retirement board provided for in
article ten-d, chapter five of this code.
(b) The department of commerce, labor and environmental
resources and the office of secretary of the department of commerce,
labor and environmental resources are abolished. For purposes of
administrative support and liaison with the office of the governor,
the following agencies and boards, including all allied, advisory
and affiliated entities are grouped under two bureaus as follows:
(1) Bureau of commerce:
(A) Division of labor provided for in article one, chapter
twenty-one of this code, which includes:
(i) Occupational safety and health review commission provided
for in article three-a, chapter twenty-one of this code; and
(ii) Board of manufactured housing construction and safety
provided for in article nine, chapter twenty-one of this code;
(B) Office of miners' health, safety and training provided for
in article one, chapter twenty-two-a of this code. The following
boards are transferred to in the office of miners' health, safety
and training for purposes of administrative support and liaison with the office of the governor:
(i) Board of coal mine health and safety and coal mine safety
and technical review committee provided for in article six, chapter
twenty-two-a of this code;
(ii) Board of miner training, education and certification
provided for in article seven, chapter twenty-two-a of this code;
and
(iii) Mine inspectors' examining board provided for in article
nine, chapter twenty-two-a of this code;
(C) The West Virginia development office provided for in
article two, chapter five-b of this code, which includes:
(i) Economic development authority provided for in article
fifteen, chapter thirty-one of this code; and
(ii) Tourism commission provided for in article two, chapter
five-b of this code and the office of the tourism commissioner;
(D) Division of natural resources and natural resources
commission provided for in article one, chapter twenty of this code.
The Blennerhassett historical state park provided for in article
eight, chapter twenty-nine of this code is under the division of
natural resources;
(E) Division of forestry provided for in article one-a, chapter
nineteen of this code;
(F) Geological and economic survey provided for in article two,
chapter twenty-nine of this code;
(G) Water development authority and board provided for in
article one, chapter twenty-two-c of this code;
(2) Bureau of employment programs provided for in article one,
chapter twenty-one-a of this code.
(c) Bureau of environment is abolished and The following
agencies and boards, including all allied, advisory and affiliated
entities, are transferred to in the department of environmental
protection for purposes of administrative support and liaison with
the office of the governor:
(1) Air quality board provided for in article two, chapter
twenty-two-b of this code;
(2) Solid waste management board provided for in article three,
chapter twenty-two-c of this code;
(3) Environmental quality board, or its successor board,
provided for in article three, chapter twenty-two-b of this code;
(4) Surface mine board provided for in article four, chapter
twenty-two-b of this code;
(5) Oil and gas inspectors' examining board provided for in
article seven, chapter twenty-two-c of this code;
(6) Shallow gas well review board provided for in article
eight, chapter twenty-two-c of this code; and
(7) Oil and gas conservation commission provided for in article
nine, chapter twenty-two-c of this code.
(d) The following agencies and boards, including all of the allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
education and the arts:
(1) Library commission provided for in article one, chapter ten
of this code;
(2) Educational broadcasting authority provided for in article
five, chapter ten of this code;
(3) Joint commission for vocational-technical-occupational
education provided for in article three-a, chapter eighteen-b of
this code;
(4) Division of culture and history provided for in article
one, chapter twenty-nine of this code; and
(5) Division of rehabilitation services provided for in section
two, article ten-a, chapter eighteen of this code.
(e) Effective the first day of July, two thousand three, the
following agencies and boards, including all of the allied,
advisory, affiliated or related entities and funds associated with
any agency or board, are transferred to and incorporated in and
administered as a part of the department of health: and human
resources
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two, chapter nine of this code;
(3) (1) Bureau for public health provided for in article one,
chapter sixteen of this code;
(4) (2) Office of emergency medical services and advisory
council thereto provided for in article four-c, chapter sixteen of
this code;
(5) (3) Health care cost review authority provided for in
article twenty-nine-b, chapter sixteen of this code; and
(6) (4) Commission on mental retardation provided for in
article fifteen, chapter twenty-nine of this code.
(7) Women's commission provided for in article twenty, chapter
twenty-nine of this code; and
(8) The child support enforcement division provided for in
chapter forty-eight of this code.
(f) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
military affairs and public safety:
(1) Adjutant general's department provided for in article
one-a, chapter fifteen of this code;
(2) Armory board provided for in article six, chapter fifteen
of this code;
(3) Military awards board provided for in article one-g, chapter fifteen of this code;
(4) West Virginia state police provided for in article two,
chapter fifteen of this code;
(5) Office of emergency services and disaster recovery board
provided for in article five, chapter fifteen of this code and
emergency response commission provided for in article five-a of said
chapter;
(6) Sheriffs' bureau provided for in article eight, chapter
fifteen of this code;
(7) Division of corrections provided for in chapter twenty-five
of this code;
(8) Fire commission provided for in article three, chapter
twenty-nine of this code;
(9) Regional jail and correctional facility authority provided
for in article twenty, chapter thirty-one of this code;
(10) Board of probation and parole provided for in article
twelve, chapter sixty-two of this code; and
(11) Division of veterans' affairs and veterans' council
provided for in article one, chapter nine-a of this code.
(g) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of tax
and revenue:
(1) Tax division provided for in article one, chapter eleven
of this code;
(2) Racing commission provided for in article twenty-three,
chapter nineteen of this code;
(3) Lottery commission and position of lottery director
provided for in article twenty-two, chapter twenty-nine of this
code;
(4) Agency of insurance commissioner provided for in article
two, chapter thirty-three of this code;
(5) Office of alcohol beverage control commissioner provided
for in article sixteen, chapter eleven of this code and article two,
chapter sixty of this code;
(6) Board of banking and financial institutions provided for
in article three, chapter thirty-one-a of this code;
(7) Lending and credit rate board provided for in chapter
forty-seven-a of this code; and
(8) Division of banking provided for in article two, chapter
thirty-one-a of this code.
(h) The following agencies and boards, including all of the
allied, advisory, affiliated or related entities and funds
associated with any agency or board, are transferred to and
incorporated in and administered as a part of the department of
transportation:
(1) Division of highways provided for in article two-a, chapter seventeen of this code;
(2) Parkways, economic development and tourism authority
provided for in article sixteen-a, chapter seventeen of this code;
(3) Division of motor vehicles provided for in article two,
chapter seventeen-a of this code;
(4) Driver's licensing advisory board provided for in article
two, chapter seventeen-b of this code;
(5) Aeronautics commission provided for in article two-a,
chapter twenty-nine of this code;
(6) State rail authority provided for in article eighteen,
chapter twenty-nine of this code; and
(7) Port authority provided for in article sixteen-b, chapter
seventeen of this code.
(i) Effective the first day of July, two thousand three, the
following agencies and boards, including all of the allied,
advisory, affiliated or related entities and funds associated with
any agency or board, are transferred to and incorporated in and
administered as a part of the department of human resources:
(1) Human rights commission provided for in article eleven,
chapter five of this code;
(2) Division of human services provided for in article two,
chapter nine of this code;
(3) Women's commission provided for in article twenty, chapter
twenty-nine of this code; and
(4) The child support enforcement division provided for in
chapter forty-eight of this code.
(i) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence of the position of
administrator and of the agency and the powers, authority and duties
of each administrator and agency are not affected by the enactment
of this chapter.
(j) Except for powers, authority and duties that have been
delegated to the secretaries of the departments by the provisions
of section two of this article, the existence, powers, authority and
duties of boards and the membership, terms and qualifications of
members of such boards are not affected by the enactment of this
chapter and all boards which are appellate bodies or were otherwise
established to be independent decision makers will not have their
appellate or independent decision-making status affected by the
enactment of this chapter.
(k) Any department previously transferred to and incorporated
in a department created in section two, article one of this chapter
by prior enactment of this section in chapter three, acts of the
Legislature, first extraordinary session, one thousand nine hundred
eighty-nine, and subsequent amendments, means a division of the
appropriate department. Wherever reference is made to any
department transferred to and incorporated in a department created in section two, article one of this chapter, the reference means a
division of the appropriate department, and any reference to a
division of a department so transferred and incorporated means a
section of the appropriate division of the department.
(l) When an agency, board or commission is transferred under
a bureau or agency other than a department headed by a secretary
pursuant to this section, that transfer is solely for purposes of
administrative support and liaison with the office of the governor,
a department secretary or a bureau. The bureaus created by the
Legislature upon the abolishment of the department of commerce,
labor and environmental resources in the year one thousand nine
hundred ninety-four will be headed by a commissioner or other
statutory officer of an agency within that bureau. Nothing in this
section extends the powers of department secretaries under section
two of this article to any person other than a department secretary
and nothing limits or abridges the statutory powers and duties of
statutory commissioners or officers pursuant to this code.
§5F-2-7. Creation of the departments of health and human
resources.
(a) Effective the first day of July, two thousand three, the
department of health and human resources is divided into two
departments, the department of health and the department of human
resources.
(b) All records, assets and property, of whatever kind or character, owned by or used in the administration of the agencies
and boards and all of the personnel used in the administration of
the department of health and human resources and it agencies and
boards, including the administrators, are transferred to the
respective department to and in which the agencies and boards are
transferred as provided in this act. The governor shall provide for
the orderly transfer of property and personnel from the department
of health and human resources to the new departments. In the event
of shared resources the governor shall determine how the resources
are distributed.
(c) The reference to the secretary of the department of health
and human resources or the department of health and human resources
in the sections of this code listed in this subsection refer to the
secretary of the department of health and the secretary of the
department of human resources or the department of health and the
department of human resources, respectively:
(1) Section four, article ten, chapter four;
(2) Section four, article six, chapter five; and
(3) Section fifty-four, article three, chapter five-a.
(d) The reference to the secretary of the department of health
and human resources or the department of health and human resources
in the sections of this code listed in this subsection refer to the
secretary of the department of health or the department of health,
respectively:
(1) Sections two and eighteen, article sixteen, chapter five;
(2) Section two, article one-a, chapter five-a;
(3) Section three-a, article one, chapter seven;
(4) Section twenty-one, article nineteen, chapter eight;
(5) Section fifty-b, article twenty-four, chapter eight;
(6) Section five-u, article ten, chapter eleven;
(7) Article two-c, article fifteen;
(8) Chapter sixteen;
(9) Section two, article twelve, chapter fifteen;
(10) Section three, article five-a, chapter seventeen-c;
(11) Section twenty-six, article fifteen, chapter seventeen-c;
(12) Section forty-four, article five, chapter eighteen;
(13) Section two, article seven-b, chapter eighteen;
(14) Section six, article ten-m, chapter eighteen;
(15) Section three, article sixteen, chapter eighteen-b;
(16) Section one-a, article twelve-a, chapter nineteen;
(17) Sections one and three, article twenty-nine, chapter
nineteen;
(18) Articles five-j and five-k, chapter twenty;
(19) Section nine, article five, chapter twenty-two;
(20) Sections six and seven, article eighteen, chapter twenty-
two;
(21) Section four, article three, chapter twenty-two-c;
(22) Section five, article two, chapter twenty-four;
(23) Section one, article five, chapter twenty-six;
(24) Sections four and five, article five-a, chapter twenty-
six;
(25) Section seven, article one, chapter twenty-seven;
(26) Sections two, three and four, article five, chapter
twenty-seven;
(27) Section two, article six-a, chapter twenty-seven;
(28) Section one, article sixteen, chapter twenty-seven;
(29) Section nineteen, article twenty-two-a, chapter twenty-
nine;
(30) Section seven, article fifteen, chapter thirty;
(31) Section seven, article fifteen-a, chapter thirty-one;
(32) Sections nine, seventeen and eighteen, article twenty-
five-b, chapter thirty-three;
(33) Sections eighteen and twenty, article twenty-five-d,
chapter thirty-three; and
(34) Sections three, ten and twelve, article twelve, chapter
sixty-one.
(e) The reference to the secretary of the department of health
and human resources or the department of health and human resources
in the sections of this code listed in this subsection refer to the
secretary of the department of human resources or the department of
human resources, respectively:
(1) Sections three and five, article fourteen, chapter five;
(2) Section four, article sixteen-b, chapter five;
(3) Section two, article twenty-six, chapter five;
(4) Section fourteen-a, article two, chapter five-a;
(5) Section one-a, article three, chapter five-a;
(6) Section three, article two-b, chapter five-b;
(7) Sections one and four, article four, chapter seven;
(8) Chapter nine;
(9) Article twenty-six, chapter eleven;
(10) Section thirty, article twenty-seven, chapter eleven;
(11) Section ten-e, article three, chapter twelve;
(12) Section five, article three-a, chapter twelve;
(13) Section four, article two-c, chapter seventeen;
(14) Section four, article twenty-four, chapter seventeen;
(15) Sections five-b and thirteen-h, article two, chapter
eighteen;
(16) Section seven-b, article ten, chapter eighteen-b;
(17) Sections sixteen and seventeen, article six, chapter
twenty-one-a;
(18) Section three, article one, chapter twenty-five;
(19) Article twenty, chapter twenty-nine;
(20) Section five, article eighteen-d, chapter thirty-one;
(21) Section eight-a, article twenty, chapter thirty-one;
(22) Section four, article two-a, chapter thirty-one-a;
(23) Section six, article twenty-five-b, chapter thirty-three;
(24) Sections eight, nine and ten, article one, chapter forty-
four-a;
(25) Section two, article two, chapter forty-four-a;
(26) Chapter forty-eight;
(27) Chapter forty-nine; and
(28) Section twenty-one, article two-a, chapter fifty-one.
CHAPTER 6. MISCELLANEOUS PROVISIONS.
ARTICLE 7. COMPENSATION AND ALLOWANCES.
§6-7-2a. Terms of certain appointive state officers; appointment;
qualifications; powers and salaries of such officers.
(a) Each of the following appointive state officers named in
this subsection shall be is appointed by the governor, by and with
the advice and consent of the Senate. Each of the appointive state
officers serves at the will and pleasure of the governor for the
term for which the governor was elected and until the respective
state officers' successors have been appointed and qualified. Each
of the appointive state officers are subject to the existing
qualifications for holding each respective office and each has and
is hereby granted all of the powers and authority and shall perform
all of the functions and services heretofore vested in and performed
by virtue of existing law respecting each office.
Prior to the first day of July, two thousand one, each such
named appointive state officer shall continue to receive the annual
salaries they were receiving as of the effective date of the enactment of this section in two thousand one, and thereafter
Notwithstanding any other provision of this code to the contrary,
the annual salary of each named appointive state officer shall be
is as follows:
Administrator, division of highways, ninety thousand dollars;
administrator, state tax division, sixty-five thousand dollars;
administrator, division of corrections, seventy-five thousand
dollars; administrator, division of natural resources, seventy
thousand dollars; superintendent, state police, seventy-five
thousand dollars; administrator, lottery division, seventy-five
thousand dollars; director, public employees insurance agency,
seventy-five thousand dollars; administrator, division of banking,
sixty thousand dollars; administrator, division of insurance, sixty
thousand dollars; administrator, division of culture and history,
fifty-five thousand dollars; administrator, alcohol beverage control
commission, seventy thousand dollars; administrator, division of
motor vehicles, seventy thousand dollars; director, division of
personnel, fifty-five thousand dollars; adjutant general, seventy-
five thousand dollars; chairman, health care authority, seventy
thousand dollars; members, health care authority, sixty thousand
dollars; director, human rights commission, forty-five thousand
dollars; administrator, division of labor, sixty thousand dollars;
administrator, division of veterans' affairs, forty-five thousand
dollars; administrator, division of emergency services, forty-five thousand dollars; members, board of parole, forty-five thousand
dollars; members, employment security review board, seventeen
thousand dollars; members, workers' compensation appeal board,
seventeen thousand eight hundred dollars; administrator, bureau of
employment programs, seventy thousand dollars; administrator, bureau
of commerce, seventy thousand dollars; administrator, bureau of
environment, seventy thousand dollars; and director, office of
miner's health, safety and training, sixty-five thousand dollars.
Secretaries of the departments shall be are paid an annual salary
as follows: Health, and seventy-five thousand dollars; human
resources, ninety thousand dollars seventy-five thousand dollars;
transportation, seventy-five thousand dollars; tax and revenue,
seventy-five thousand dollars; military affairs and public safety,
seventy-five thousand dollars; administration, seventy-five thousand
dollars; education and the arts, seventy-five thousand dollars; and
environmental protection, seventy-five thousand dollars.
(b) Each of the state officers named in this subsection shall
continue to be appointed in the manner prescribed in this code and,
prior to the first day of July, two thousand two, each of the state
officers named in this subsection shall continue to receive the
annual salaries he or she was receiving as of the effective date of
the enactment of this section in two thousand two, and shall
thereafter notwithstanding any other provision of this code to the
contrary, be paid an annual salary as follows:
Administrator, division of risk and insurance management,
fifty-five thousand dollars; director, division of rehabilitation
services, sixty thousand dollars; executive director, educational
broadcasting authority, sixty thousand dollars; secretary, library
commission, sixty-seven thousand dollars; director, geological and
economic survey, fifty-two thousand five hundred dollars; executive
director, prosecuting attorneys institute, sixty thousand dollars;
executive director, public defender services, sixty thousand
dollars; commissioner, bureau of senior services, seventy thousand
dollars; director, state rail authority, fifty-five thousand
dollars; executive secretary, women's commission, thirty-one
thousand dollars; director, hospital finance authority, twenty-six
thousand dollars; member, racing commission, twelve thousand
dollars; chairman, public service commission, seventy thousand
dollars; and members, public service commission, seventy thousand
dollars.
(c) No increase in the salary of any appointive state officer
pursuant to this section shall be paid until and unless the
appointive state officer has first filed with the state auditor and
the legislative auditor a sworn statement, on a form to be
prescribed by the attorney general, certifying that his or her
spending unit is in compliance with any general law providing for
a salary increase for his or her employees. The attorney general
shall prepare and distribute the form to the affected spending units.
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, except when used in the context of referring to the
department of human resources.
(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 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.
(o) The term "department of health and human resources" means the department of human resources.
ARTICLE 2. DEPARTMENT OF HUMAN RESOURCES, AND OFFICE OF
COMMISSIONER OF HUMAN SERVICES; POWERS, DUTIES AND
RESPONSIBILITIES GENERALLY.
§9-2-1a. Department of human resources.
(a) The department of health and human resources shall be is
charged with the administration of this chapter. The department of
health and human resources shall continue to exist pursuant to the
provisions of article ten, chapter four of this code, until the
first day of July, two thousand three, unless sooner terminated,
continued or reestablished pursuant to that article.
(b) Notwithstanding any provision of this chapter, as used in
this chapter, the term "department of health and human resources"
means the department of human resources.
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 1. STATE PUBLIC HEALTH SYSTEM.
§16-1-2. Definitions.
Unless the context in which used clearly requires a different
meaning, as used in this article:
(a) "Basic public health services" means those services that
are necessary to protect the health of the public. The three areas
of basic public health services are communicable and reportable
disease prevention and control, community health promotion and
environmental health protection;
(b) "Bureau" means the bureau for public health in the
department of health; and human resources
(c) "Combined local board of health" is one form of
organization for a local board of health and means a board of health
serving any two or more counties or any county or counties and one
or more municipalities within or partially within the county or
counties;
(d) "Commissioner" means the commissioner of the bureau for
public health, who is the state health officer;
(e) "County board of health" is one form of organization for
a local board of health and means a local board of health serving
a single county;
(f) "Department" means the West Virginia department of health;
and human resources
(g) "Director" or "director of health" means the state health
officer. Administratively within the department, the bureau for
public health through its commissioner carries out the public health
functions of the department, unless otherwise assigned by the
secretary;
(h) "Essential public health services" means the core public
health activities necessary to promote health and prevent disease,
injury and disability for the citizens of the state. The services
include:
(1) Monitoring health status to identify community health problems;
(2) Diagnosing and investigating health problems and health
hazards in the community;
(3) Informing, educating and empowering people about health
issues;
(4) Mobilizing community partnerships to identify and solve
health problems;
(5) Developing policies and plans that support individual and
community health efforts;
(6) Enforcing laws and rules that protect health and ensure
safety;
(7) Uniting people with needed personal health services and
assuring the provision of health care when it is otherwise not
available;
(8) Promoting a competent public health and personal health
care workforce;
(9) Evaluating the effectiveness, accessibility and quality of
personal and population-based health services; and
(10) Researching for new insights and innovative solutions to
health problems;
(i) "Licensing boards" means those boards charged with
regulating an occupation, business or profession and on which the
commissioner serves as a member;
(j) "Local board of health," "local board" or "board" means a board of health serving one or more counties or one or more
municipalities or a combination thereof;
(k) "Local health department" means the staff of the local
board of health;
(l) "Local health officer" means the individual physician with
a current West Virginia license to practice medicine who supervises
and directs the activities of the local health department services,
staff and facilities and is appointed by the local board of health
with approval by the commissioner;
(m) "Municipal board of health" is one form of organization for
a local board of health and means a board of health serving a single
municipality;
(n) "Performance-based standards" means generally accepted,
objective standards such as rules or guidelines against which public
health performance can be measured;
(o) "Program plan" or "plan of operation" means the annual plan
for each local board of health that must be submitted to the
commissioner for approval;
(p) "Public water system" means any water supply or system
which regularly supplies or offers to supply water for human
consumption through pipes or other constructed conveyances, if
serving at least an average of twenty-five individuals per day for
at least sixty days per year, or which has at least fifteen service
connections, and shall include: (1) Any collection, treatment, storage and distribution facilities under the control of the owner
or operator of the system and used primarily in connection with the
system; and (2) any collection or pretreatment storage facilities
not under such control which are used primarily in connection with
the system. A public water system does not include a system which
meets all of the following conditions: (1) Which consists only of
distribution and storage facilities (and does not have any
collection and treatment facilities); (2) which obtains all of its
water from, but is not owned or operated by, a public water system
which otherwise meets the definition; (3) which does not sell water
to any person; and (4) which is not a carrier conveying passengers
in interstate commerce;
(q) "Secretary" means the secretary of the state department of
health; and human resources
(r) "Service area" means the territorial jurisdiction of a
local board of health;
(s) "State advisory council on public health" is the advisory
body charged by this article with providing advice to the
commissioner with respect to the provision of adequate public health
services for all areas in the state; and
(t) "State board of health" means, and refers to, the
secretary, notwithstanding any other provision of this code to the
contrary, whenever and wherever in this code there is a reference
to the state board of health.
ARTICLE 5P. SENIOR SERVICES.
§16-5P-7. Creation and composition of the West Virginia council on
aging; terms of citizen representative; vacancies;
officers; meetings.
(a) There is hereby created the West Virginia council on aging,
which shall be is composed of five government members and ten
citizen members, and shall serve serves as an advisory board to the
commissioner.
(b) The five government members shall be are: (1) The director
of the division of commissioner of bureau for public health; (2) the
director of the bureau of medical services; (3) one administrator
designated by the secretary of the department of health and human
resources; (4) one administrator designated by the superintendent
of the West Virginia state police; and (5) the director of the
division of rehabilitation services.
(c) The citizen members shall be are appointed by the governor
with the advice and consent of the Senate. No more than five of the
citizen members shall may belong to the same political party, and
no more than six members shall may be of the same gender. The
members shall be selected in a manner to provide balanced
geographical distribution.
(d) The designated administrators and the citizen
representatives of the council shall be are appointed for terms of
four years each, and shall serve until their successors are appointed and qualified. The citizen representatives appointed to
staggered terms pursuant to section two, article fourteen,
chapter twenty-nine of this code to the state commission on aging
shall continue to serve the remainder of their term or until their
successors are appointed and qualified.
(e) A majority of the members of the council shall constitute
is a quorum for the transaction of business. The council shall
elect a chair, a vice-chair, and such other officers as it deems
necessary. The council shall meet at least two times each year.
Each government representative shall designate a person with the
authority to attend meetings and act on behalf of the government
representative, who shall be considered a member of the council for
the purpose of obtaining a quorum for the transaction of business.
ARTICLE 5S. OLDER WEST VIRGINIANS ACT.
§16-5S-5. Powers and duties of the bureau of senior services.
The bureau shall be is the designated state agency to:
(a) Develop and administer the state plan as required by the
federal administration on aging;
(b) Be the primary agency responsible for the planning, policy
development, administration, coordination, priority setting and
evaluation of activities related to this article;
(c) Serve as an effective and visible advocate for older West
Virginians;
(d) Divide the state into distinct planning and service areas and designate for each area a public or private nonprofit agency or
organization as the area agency on aging as required by the federal
administration on aging;
(e) Provide technical assistance and information to area
agencies on aging and local service providers as appropriate and
conduct monitoring of area agencies on aging to ensure compliance
with applicable rules, regulations and standards;
(f) Maintain client and service data using a standardized
computer client tracking system through which all providers shall
report required information;
(g) Maintain letters of agreement with the state department of
health and human resources to provide program operations of the
personal care and aged and disabled waiver programs; and
(h) Maintain a registry of companies and organizations that
provide free medications or provide assistance to persons in
securing medications, and make this information available to
consumers through all local senior programs.
ARTICLE 22A. TESTING OF NEWBORN INFANTS FOR HEARING IMPAIRMENTS.
§16-22A-3. Fees for testing; payment of same.
(a) Testing required under this article shall be is a covered
benefit reimbursable by all health insurers except for health
insurers that offer only supplemental coverage policies or policies
which cover only specified diseases. All policies issued pursuant
to articles fifteen, sixteen, twenty-four and twenty-five-a of chapter thirty-three of this code shall provide coverage for the
testing required under this article.
(b) The department of health and human resources shall pay for
testing required under this article when the newborn infant is
eligible for medical assistance under the provisions of section
twelve, article five, chapter nine of this code.
(c) In the absence of a third-party payor, the parents of a
newborn infant shall be informed of the testing availability and its
costs and they may refuse to have the testing performed. Charges
for the testing required under this article shall be paid by the
hospital or other health care facility where the infant's birth
occurred: Provided, That nothing contained in this section may be
construed to preclude precludes the hospital or other health care
facility from billing the infant's parents directly.
ARTICLE 29D. STATE HEALTH CARE.
§16-29D-3. Agencies to cooperate and to provide plan; contents of
plan; reports to Legislature; late payments by state
agencies and interest thereon.
(a) All departments and divisions of the state, including, but
not limited to, the bureau of employment programs, the division of
the bureau for public health, the division of human services within
the department of health and human resources, the public employees
insurance agency within the department of administration, the
division of rehabilitation services or such other department or division as shall supervise or provide that supervises or provides
rehabilitation; and the university of West Virginia board of
trustees as the governing board for the state's the governing boards
of state institutions of higher education that have medical schools,
are authorized and directed to cooperate in order, among other
things, to ensure the quality of the health care services delivered
to the beneficiaries of such the departments and divisions and to
ensure the containment of costs in the payment for such services.
(b) It is expressly recognized that no other entity may
interfere with the discretion and judgment given to the single state
agency which administers the state's medicaid program. Thus, it is
the intention of the Legislature that nothing contained in this
article shall be interpreted, construed, or applied to interfere
with the powers and actions of the single state agency which, in
keeping with applicable federal law, shall administer the state's
medicaid program as it perceives to be in the best interest of that
program and its beneficiaries.
(c) Such The departments and divisions shall develop a plan or
plans to ensure that a reasonable and appropriate level of health
care is provided to the beneficiaries of the various programs
including the public employees insurance agency and the workers'
compensation fund, the division of rehabilitation services and, to
the extent permissible, the state medicaid program. The plan or
plans may include, among other things, and the departments and divisions are hereby authorized to enter into:
(1) Utilization review and quality assurance programs;
(2) The establishment of a schedule or schedules of the maximum
reasonable amounts to be paid to health care providers for the
delivery of health care services covered by the plan or plans. Such
a The schedule or schedules may be either prospective in nature or
cost reimbursement in nature, or a mixture of both: Provided, That
any payment methods or schedules for institutions which provide
inpatient care shall be institution-specific and shall, at a
minimum, take into account a disproportionate share of medicaid,
charity care and medical education: Provided, however, That in no
event may any rate set in this article for an institutional health
care provider be greater than such the institution's current rate
established and approved by the health care cost review authority
pursuant to article twenty-nine-b of this chapter;
(3) Provisions for making payments in advance of the receipt
of health care services by a beneficiary, or in advance of the
receipt of specific charges for such the services, or both;
(4) Provisions for the receipt or payment of charges by
electronic transfers;
(5) Arrangements, including contracts, with preferred provider
organizations; and
(6) Arrangements, including contracts, with particular health
care providers to deliver health care services to the beneficiaries of the programs of the departments and divisions at agreed upon
rates in exchange for controlled access to the beneficiary
populations.
(d) The director of the public employees insurance agency shall
contract with an independent actuarial company for a review every
four years of the claims experience of all governmental entities
whose employees participate in the public employees insurance agency
program, including, but not limited to, all branches of state
government, all state departments or agencies (including those
receiving funds from the federal government or a federal agency),
all county and municipal governments, or any other similar entities
for the purpose of determining the cost of providing coverage under
the program, including administrative cost, to each such
governmental entity.
(e) Nothing in this section shall be construed to give or
reserve gives or reserves to the Legislature any further or greater
power or jurisdiction over the operations or programs of the various
departments and divisions affected by this article than that already
possessed by the Legislature in the absence of this article.
(f) For the purchase of health care or health care services by
a health care provider participating in a plan under this section
on or after the first day of September, one thousand nine hundred
eighty-nine, by the public employees insurance agency, the division
of rehabilitation services and the division of workers' compensation, a state check shall be issued in payment thereof
within sixty-five days after a legitimate uncontested invoice is
actually received by such the division or agency. Any state check
issued after sixty-five days shall include interest at the current
rate, as determined by the state tax commissioner under the
provisions of section seventeen-a, article ten, chapter eleven of
this code, which interest shall be calculated from the sixty-sixth
day after such the invoice was actually received by the division
or agency until the date on which the state check is mailed to the
vendor.
ARTICLE 29E. LEGISLATIVE OVERSIGHT COMMISSION ON HEALTH AND HUMAN
RESOURCES ACCOUNTABILITY.
§16-29E-2. Legislative intent.
It is the intent of the Legislature that all actions taken
pursuant to the provisions of this article by the Legislature and
the various agencies within the department of health and the
department of human resources serve the following core set of
principles:
(1) That all health and social programs offered under state
authority be coordinated to maximize efficiencies and minimize
competition within the various agencies thereby addressing the needs
of the citizens more effectively;
(2) That communication be facilitated among the various
agencies within the department of health and the department of human resources and between the department departments and the
Legislature;
(3) That policy changes, not made by legislative rule, be
discussed with the commission for purposes of coordinating those
policies with existing programs and stated goals;
(4) That programs or policies implemented in accordance with
federal mandates be communicated to the commission;
(5) That in developing and implementing programs with private
or federal grant moneys, the various agencies communicate their
efforts to the commission to ensure and facilitate future state
funding; and
(6) That agencies previously exempted from rule-making review
by federal or state statutes advise the commission of program
changes which may affect the health and well-being of the citizens
of West Virginia.
§16-29E-3. Definitions.
As used in this article:
(a) "Agency" means those various agencies, authorities, boards,
committees, commissions or departments of the department of health
and department of human resources with authority to promulgate
legislative rules pursuant to this chapter that regulate health care
providers, practitioners or consumers; or those offering social
services programs;
(b) "Commission" means the legislative oversight commission on health and human resources accountability; and
(c) "Department" and "department of health and human resources"
means the department of health and the department of human
resources.
CHAPTER 18. EDUCATION.
ARTICLE 10K. WEST VIRGINIA TRAUMATIC BRAIN AND SPINAL CORD INJURY
REHABILITATION FUND ACT.
§18-10K-2. Board created, membership, terms, officers and staff.
(a) There is established the West Virginia traumatic brain and
spinal cord injury rehabilitation fund board.
(b) The board shall consist consists of twenty-three members.
The members shall include:
(1) The secretary of the department of education and the arts,
ex officio, or his or her designee;
(2) The secretary of health and human resources, ex officio,
or his or her designee;
(3) The state superintendent of schools, ex officio, or his or
her designee;
(4) The secretary of the department of military affairs and
public safety, ex officio, or his or her designee;
(5) The director of the bureau of behavioral health within the
department of health, and human resources ex officio, or his or her
designee;
(6) The director of the division of rehabilitation services, ex officio, or his or her designee;
(7) The director of the bureau of medical services, ex officio,
or his or her designee;
(8) The director of the office of emergency services, ex
officio, or his or her designee;
(9) The commissioner of the bureau of employment programs, ex
officio, or his or her designee;
(10) Seven members appointed by the governor to represent
public and private health organizations or other disability
coalitions or advisory groups; and
(11) Seven members appointed by the governor who are either
survivors of traumatic brain or spinal cord injury or family members
of persons with traumatic brain or spinal cord injury.
(c) The citizen members shall be are appointed by the governor
for terms of three years, except that of the members first
appointed, two of the representatives of public and nonprofit
private health organizations, disability coalitions or advisory
groups and two of the representatives of survivors or family members
of persons with traumatic brain or spinal cord injuries shall serve
for terms of one year, two of the representatives of each of those
respective groups shall serve for terms of two years, and the
remaining three representatives of each of those respective groups
shall serve for terms of three years. All subsequent appointments
shall be are for three years. Members shall serve until the expiration of the term for which they have been appointed or until
their successors have been appointed and qualified. In the event
of a vacancy the governor shall appoint a qualified person to serve
for the unexpired term. No member may serve more than two
consecutive three-year terms. State officers or employees may be
appointed to the board unless otherwise prohibited by law.
(d) In the event a board member fails to attend more than
twenty-five percent of the scheduled meetings in a twelve-month
period, the board may, after written notification to that member and
the secretary of education and the arts, request in writing that the
governor remove the member and appoint a new member to serve his or
her unexpired term.
(e) The board shall elect from its membership a chairperson,
treasurer and secretary as well as any other officer as appropriate.
The term of the chairperson is for two years in duration and he or
she cannot may not serve more than two consecutive terms.
CHAPTER 33. INSURANCE.
ARTICLE 25B. FEDERAL INSURANCE SUBSIDY FOR CHILDREN'S HEALTH.
§33-25B-2. Purpose.
The purpose of this article is to:
(a) Assist, promote, encourage, develop and advance the
knowledge of lower to moderate income families with dependent
children of the earned income credit available for money spent on
health insurance;
(b) Cooperate and act in conjunction with other organizations,
public and private, the objects of which are the promotion and
education of lower to moderate income families with dependent
children of the earned income credit available for money spent on
health insurance;
(c) Establish a system of qualified applicant aides who shall
be are trained by the department of health and human services
resources and, who, for a modest dollar incentive, will on a
volunteer basis make knowledge of this program available to the
targeted families; and
(d) Establish a mechanism by which to provide counseling and
assistance to families and aid them in filing for the insurance
voucher, selecting an appropriate health insurance policy and
completing the required federal income tax return.
ARTICLE 25D. PREPAID LIMITED HEALTH SERVICE ORGANIZATION ACT.
§33-25D-29. Authority to contract with prepaid limited health
service organizations under medicaid.
The department of health and human resources is authorized to
enter into contracts with prepaid limited health service
organizations certified and permitted to market under the laws of
this state, and to furnish to recipients of medical assistance under
Title XIX of the Social Security Act, 42 U.S.C. §1396, et seq.,
limited health services offered to such recipients under the medical
assistance plan of West Virginia. The children's health policy board, the department of health and human resources and the division
of juvenile services within the department of military affairs and
public safety are further authorized to enter into contracts with
prepaid limited health service organizations to furnish behavioral
health services to adults and children who are eligible to receive
such services under chapter five, chapter sixteen, chapter twenty-
seven or chapter forty-nine of this code.
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 1. GENERAL PROVISIONS; DEFINITIONS.
§48-1-220a. Department of health and human resources defined.
"Department of health and human resources" means the department
of human resources.
§48-1-236. Secretary defined.
"Secretary" means the secretary of the department of health and
human resources.
PART 5. DUTIES OF THE BUREAU FOR PUBLIC HEALTH.
§48-26-501. Development of state public health plan for reducing
domestic violence.
(a) The bureau for public health of the department of health,
and human resources in consultation with the family protection
services board, shall:
(1) Assess the impact of domestic violence on public health;
and
(2) Develop a state public health plan for reducing the incidence of domestic violence in this state.
(b) The state public health plan shall:
(1) Include, but not be limited to, public education, including
the use of the various communication media to set forth the public
health perspective on domestic violence;
(2) Be developed in consultation with public and private
agencies that provide programs for victims of domestic violence,
advocates for victims, organizations representing the interests of
shelters, and persons who have demonstrated expertise and experience
in providing health care to victims of domestic violence and their
children; and
(3) Be completed on or before the first day of January, two
thousand.
(c) The bureau for public health of the department of health
and human resources shall:
(1) Transmit a copy of the state public health plan to the
governor and the Legislature; and
(2) Review and update the state public health plan annually.
§48-26-502. Notice of victims' rights, remedies and available
services; required information.
(a) The bureau for public health of the department of health
and human resources shall make available to health care facilities
and practitioners a written form notice of the rights of victims and
the remedies and services available to victims of domestic violence.
(b) A health care practitioner whose patient has injuries or
conditions consistent with domestic violence shall provide to the
patient, and every health care facility shall make available to all
patients, a written form notice of the rights of victims and the
remedies and services available to victims of domestic violence.
§48-26-503. Standards, procedures and curricula.
(a) The bureau for public health of the department of health
and human resources shall publish model standards, including
specialized procedures and curricula, concerning domestic violence
for health care facilities, practitioners and personnel.
(b) The procedures and curricula shall be developed in
consultation with public and private agencies that provide programs
for victims of domestic violence, advocates for victims,
organizations representing the interests of shelters and personnel
who have demonstrated expertise and experience in providing health
care to victims of domestic violence and their children.
CHAPTER 49. CHILD WELFARE.
ARTICLE 1. PURPOSES; DEFINITIONS.
§49-1-4. Other definitions.
As used in this chapter:
(1) "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, or any facility that provides care for
unmarried mothers and their children;
(2) "Community based," when referring to a facility, program,
or service, means located near the juvenile's home or family and
involving community participation in planning, operation and
evaluation, and which may include, but is not limited to, medical,
educational, vocational, social and psychological guidance,
training, special education, counseling, alcoholism and any
treatment and other rehabilitation services;
(3) "Court" means the circuit court of the county with
jurisdiction of the case or the judge thereof in vacation unless
otherwise specifically provided;
(4) "Custodian" means a person who has or shares actual
physical possession or care and custody of a child, regardless of
whether such person has been granted custody of the child by any
contract, agreement or legal proceedings;
(5) "Department," or "state department" or "department of
health and human resources" means the state department of health and
human resources;
(6) "Division of juvenile services" means the division within
the department of military affairs and public safety pursuant to
article five-e of this chapter;
(7) "Guardian" means a person who has care and custody of a child as a result of any contract, agreement or legal proceeding;
(8) "Juvenile delinquent" means a juvenile who has been
adjudicated as one who commits an act which would be a crime under
state law or a municipal ordinance if committed by an adult;
(9) "Nonsecure facility" means any public or private
residential facility not characterized by construction fixtures
designed to physically restrict the movements and activities of
individuals held in lawful custody in such facility and which
provides its residents access to the surrounding community with
supervision;
(10) "Referee" means a juvenile referee appointed pursuant to
section one, article five-a of this chapter, except that in any
county which does not have a juvenile referee the judge or judges
of the circuit court may designate one or more magistrates of the
county to perform the functions and duties which may be performed
by a referee under this chapter;
(11) "Secretary" means the secretary of health and human
resources;
(12) "Secure facility" means any public or private residential
facility which includes construction fixtures designed to physically
restrict the movements and activities of juveniles or other
individuals held in lawful custody in such facility;
(13) "Staff-secure facility" means any public or private
residential facility characterized by staff restrictions of the movements and activities of individuals held in lawful custody in
such facility and which limits its residents' access to the
surrounding community, but is not characterized by construction
fixtures designed to physically restrict the movements and
activities of residents;
(14) "Status offender" means a juvenile who has been
adjudicated as one:
(A) Who habitually and continually refuses to respond to the
lawful supervision by his or her parents, guardian or legal
custodian such that the child's behavior substantially endangers the
health, safety or welfare of the juvenile or any other person;
(B) Who has left the care of his or her parents, guardian or
custodian without the consent of such person or without good cause;
(C) Who is habitually absent from school without good cause;
or
(D) Who violates any West Virginia municipal, county or state
law regarding use of alcoholic beverages by minors; and
(15) "Valid court order" means a court order given to a
juvenile who was brought before the court and made subject to such
order, and who received, before the issuance of such order, the full
due process rights guaranteed to such juvenile by the constitutions
of the United States and the state of West Virginia.
ARTICLE 4. CHILDREN WITH SPECIAL HEALTH CARE NEEDS.
§49-4-1. Purpose.
The purpose of this article is to provide for the continuation
and development of services for children with special health care
needs. The state bureau of for public health within the department
of health and human resources shall formulate and apply
administrative policies concerning the care and treatment of
children with special health care needs and shall cooperate with
other agencies responsible for such care and treatment.
In the development of administrative policies, the state bureau
shall cooperate with the United States department of health and
human services and shall comply with the regulations that agency
prescribes under the authority of the "Social Security Act", and is
hereby authorized to receive and expend federal funds for these
services.
§49-4-4. Report of birth of special health care needs child.
Within thirty days after the birth of a child with a congenital
deformity, the physician, midwife or other person attending the
birth shall report to the state bureau of for public health, on
forms prescribed by them, the birth of such the child.
The report shall be is solely for the use of the state
department of health and human resources and shall is not be open
for public inspection.
§49-4-5. Assistance by other agencies.
So far as practicable, the services and facilities of the state
departments of health, and human services resources and education vocational and the divisions of rehabilitation services and
corrections or their successors shall be available to the state
bureau of for public health for the purposes of this article.
ARTICLE 4A. WEST VIRGINIA FAMILY SUPPORT PROGRAM.
§49-4A-2. Definitions.
(a) "Family or primary caregiver" means the person or persons
with whom the developmentally disabled person resides and who is
primarily responsible for the physical care, education, health and
nurturing of the disabled person. The term does not include
hospitals, sanitariums, nursing homes, personal care homes or any
other such institution.
(b) "Legal guardian" means the person who is appointed legal
guardian of a developmentally disabled person and who is responsible
for the physical and financial aspects of caring for such person,
regardless of whether the disabled person resides with his or her
legal guardian or another family member.
(c) "Family support" means goods and services needed by
families to care for their family members with developmental
disabilities and to enjoy a quality of life comparable to other
community members.
(d) "Family support program" means a coordinated system of
family support services administered by the department of health and
human resources through initial contracts with agencies within four
of the state's behavioral health regions.
(e) "Developmental disability" means a severe, chronic
disability of a person which:
(1) Is attributable to a mental or physical impairment or a
combination of mental and physical impairments;
(2) Is manifested before the person attains age twenty-two;
(3) Results in substantial functional limitations in three or
more of the following areas of major life activity: (A) Self-care;
(B) receptive and expressive language; (C) learning; (D) mobility;
(E) self-direction; (F) capacity for independent living; and (G)
economic self-sufficiency; and
(4) Reflects the person's need for services and supports which
are of lifelong or extended duration and are individually planned
and coordinated.
The term "developmental disability", when applied to infants
and young children, means individuals from birth to age five,
inclusive, who have substantial developmental delays or specific
congenital or acquired conditions with a high probability of
resulting in developmental disabilities if services are not
provided.
(f) "Regional family support council" means the council
established by the regional family support agency under the
provisions of section six of this article to carry out the
responsibilities specified in this article.
(g) "State family support council" means the council established by the department of health and human resources under
section six of this article to carry out the responsibilities
specified in this article.
§49-4A-5. Program administration.
(a) The administering agency for the family support program is
the department of health. and human resources
(b) The department of health and human resources shall
initially implement the family support program through contracts
with an agency within four of the state's behavioral health regions,
with the four regions to be determined by the department of health
and human resources in consultation with the state family support
council. These regional family support agencies of the family
support program will be responsible for implementing the provisions
of this article and subsequent policies for the families of persons
with developmental disabilities residing within their respective
regions. Each regional family support agency must serve at least
twenty-five families from each fifty thousand dollars allocated.
The total appropriation from general revenue funds for this program
shall not exceed two hundred thousand dollars for the fiscal year
beginning the first day of July, one thousand nine hundred
ninety-one.
(c) The department of health, and human resources in
conjunction with the state family support council, shall adopt
policies and procedures regarding:
(1) Development of annual budgets;
(2) Program specifications;
(3) Criteria for awarding contracts for operation of regional
family support programs and the role of regional family support
councils;
(4) Annual evaluation of services provided by each regional
family support agency, including consumer satisfaction;
(5) Coordination of the family support program and the use of
its funds, throughout the state and within each region, with other
publicly funded programs, including medicaid;
(6) Performance of family needs assessments and development of
family service plans;
(7) Methodology for allocating resources to families within the
funds available; and
(8) Resolution of grievances filed by families pertaining to
actions of the family support program.
(d) The department of health and human resources shall submit
a report to the governor and the Legislature on the family support
program by the fifteenth day of January, one thousand nine hundred
ninety-two, and by the fifteenth day of September every year,
thereafter so long as the program is funded.
§49-4A-6. Regional and state family support councils.
(a) Each regional family support agency shall establish a
regional family support council comprised of at least seven members, of whom at least a majority shall be are persons with developmental
disabilities or their parents or primary caregivers. Each regional
family support council shall meet at least quarterly to advise the
regional family support agency on matters related to local
implementation of the family support program and to communicate
information and recommendations regarding the family support program
to the state family support council.
(b) The secretary of the department of health and human
resources shall appoint a state family support council comprised of
at least twenty-two members, of whom at least a majority shall be
are persons with developmental disabilities or their parents or
primary caregivers. A representative elected by each regional
council shall serve on the state council. The state council shall
also include a representative from each of the following agencies:
The state developmental disabilities planning council, the state
protection and advocacy agency, the university affiliated center for
developmental disabilities, the office of special education, the
association of community mental health/mental retardation programs
and the early intervention interagency coordinating council.
(c) The state council shall meet at least quarterly. The state
council will participate in the development of program policies and
procedures, annual contracts and perform such other duties as are
necessary for statewide implementation of the family support
program.
(d) Members of the state and regional councils who are a member
of the family or the primary caregiver of a developmentally disabled
person shall be reimbursed for travel and lodging expenses incurred
in attending official meetings of their councils. Child care
expenses related to the developmentally disabled person shall also
be reimbursed. Members of regional councils who are eligible for
expense reimbursement shall be reimbursed by their respective
regional family support agencies.
ARTICLE 5D. MULTIDISCIPLINARY TEAMS.
§49-5D-5. Child fatality review team.
(a) The child fatality review team is hereby established under
the office of the chief medical examiner. The child fatality review
team is a multidisciplinary team created to review the deaths of
children under the age of eighteen years as provided for in this
section.
(b) The child fatality review team is to consist of the
following members, appointed by the governor, to serve three-year
terms:
(1) The chief medical examiner, who is to serve as the
chairperson of the child fatality review team;
(2) Two prosecuting attorneys or their designees;
(3) The state superintendent of the West Virginia state police
or his or her designee;
(4) One law-enforcement official other than a member of the West Virginia state police;
(5) One child protective services worker currently employed in
investigating reports of child abuse or neglect;
(6) One physician, specializing in the practice of pediatric
medicine or family medicine;
(7) One physician, specializing in the practice of pediatric
critical care medicine;
(8) One social worker who may be employed in the area of public
health;
(9) The director of the office of maternal and child health of
the department of health and human resources or his or her designee;
(10) One representative of the sudden infant death syndrome
program of the office of maternal and child health;
(11) The director of the division of children's mental health
services of the office of behavioral health services or his or her
designee;
(12) The director of the office of social services of the
department of health and human resources or his or her designee;
(13) The superintendent of the department of education or his
or her designee;
(14) The director of the division of juvenile services or his
or her designee; and
(15) The president of the West Virginia association of school
nurses or his or her designee.
(c) Members of the child fatality review team shall, unless
sooner removed, continue to serve until their respective terms
expire and until their successors have been appointed and have
qualified.
(d) Each appointment of a prosecuting attorney, whether for a
full term or to fill a vacancy, is to be made by the governor from
among three nominees selected by the West Virginia prosecuting
attorneys institute. Each appointment of a law-enforcement officer,
whether for a full term or to fill a vacancy, is to be made by the
governor from among three nominees selected by the state fraternal
order of police or the West Virginia deputy sheriff's association.
Each appointment of a child protective services worker and a social
worker, whether for a full term or to fill a vacancy, is to be made
by the governor from among three nominees selected by the West
Virginia social work licensing board. Each appointment of a
physician, whether for a full term or to fill a vacancy, is to be
made by the governor from among three nominees selected by the West
Virginia state medical association or the West Virginia academy of
pediatrics. When an appointment is for a full term, the nomination
is to be submitted to the governor not later than eight months prior
to the date on which the appointment is to become effective. In the
case of an appointment to fill a vacancy, the nominations are to be
submitted to the governor within thirty days after the request for
the nomination has been made by the governor to the chairperson or president of the organization. When an association fails to submit
to the governor nominations for the appointment in accordance with
the requirements of this section, the governor may make the
appointment without nominations.
(e) Each member of the child fatality review team shall serve
without additional compensation and may not be reimbursed for any
expenses incurred in the discharge of his or her duties under the
provisions of this article.
(f) The child fatality review team shall, pursuant to the
provisions of chapter twenty-nine-a, promulgate rules applicable to
the following:
(1) The standard procedures for the establishment, formation
and conduct of the child fatality review team; and
(2) Recommend protocols for the review of child fatalities
where other than natural causes are suspected.
(g) The child fatality review team shall:
(1) Review all deaths of children under the age of eighteen
years who are residents of this state in order to identify trends,
patterns and risk factors;
(2) Provide statistical analysis regarding the causes of child
fatalities in West Virginia;
(3) Promote public awareness of the incidence and causes of
child fatalities, including recommendations for their reduction; and
(4) Provide training for state agencies and local multidisciplinary teams.
(h) The child fatality review team shall submit an annual
report to the governor and to the Legislature concerning its
activities and the incidents of child fatalities within the state.
The report is due annually on the first day of December. The report
is to include statistics setting forth the number of child
fatalities, identifiable trends in child fatalities in the state,
including possible causes, if any, and recommendations to reduce the
number of preventable child fatalities in the state. The report is
to also include the number of children whose deaths have been
determined to have been unexpected or unexplained.
(i) A local multidisciplinary investigative team created
pursuant to the provisions of section two of this article shall
review all cases referred to it pursuant to the provisions of that
section: Provided, That a local multidisciplinary investigative
team may refer any or all cases for review of deaths to the child
fatality review team. The local multidisciplinary investigative
team shall provide all information to the child fatality review team
necessary for the child fatality review team to create and submit
any report required by this section.
(j) The child fatality review team, in the exercise of its
duties as defined in this section, may not:
(1) Call witnesses or take testimony from individuals involved
in the investigation of a child fatality;
(2) Contact a family member of the deceased child, except if
a member of the team is involved in the investigation of the death
and must contact a family member in the course of performing his or
her duties outside of the team; or
(3) Enforce any public health standard or criminal law or
otherwise participate in any legal proceeding, except if a member
of the team is involved in the investigation of the death or
resulting prosecution and must participate in a legal proceeding in
the course of performing in his or her duties outside of the team.
(k) Proceedings, records and opinions of the child fatality
review team are confidential, in accordance with section one,
article seven, chapter forty-nine of this code, and are not subject
to discovery, subpoena or introduction into evidence in any civil
or criminal proceeding. Nothing in this subsection is to be
construed to limit or restrict the right to discover or use in any
civil or criminal proceeding anything that is available from another
source and entirely independent of the proceedings of the child
fatality review team.
(l) Members of the child fatality review team may not be
questioned in any civil or criminal proceeding regarding information
presented in or opinions formed as a result of a meeting of the
team. Nothing in this subsection may be construed to prevent a
member of the child fatality review team from testifying to
information obtained independently of the team or which is public information.
ARTICLE 7. GENERAL PROVISIONS.
§49-7-1. Confidentiality of records.
(a) Except as otherwise provided in this chapter or by order
of the court, all records and information concerning a child or
juvenile which are maintained by the division of juvenile services,
the department of health, and the department of human resources, a
child agency or facility, court or law-enforcement agency shall be
kept confidential and shall may not be released or disclosed to
anyone, including any federal or state agency.
(b) Notwithstanding the provisions of subsection (a) of this
section or any other provision of this code to the contrary, records
concerning a child or juvenile, except adoption records, juvenile
court records and records disclosing the identity of a person making
a complaint of child abuse or neglect shall be made available:
(1) Where otherwise authorized by this chapter;
(2) To:
(A) The child;
(B) A parent whose parental rights have not been terminated;
or
(C) The attorney of the child or parent;
(3) With the written consent of the child or of someone
authorized to act on the child's behalf; or
(4) Pursuant to an order of a court of record: Provided, That the court shall review such reviews the record or records for
relevancy and materiality to the issues in the proceeding, and may
issue an order to limit the examination and use of the records or
any part thereof of the records.
(c) In addition to those persons or entities to whom
information may be disclosed under subsection (b) of this section,
information related to child abuse or neglect proceedings, except
information relating to the identity of the person reporting or
making a complaint of child abuse or neglect, shall be made
available, upon request, to:
(1) Federal, state or local government entities, or any agent
of such these entities, including law-enforcement agencies and
prosecuting attorneys, having a need for such information in order
to carry out its responsibilities under law to protect children from
abuse and neglect;
(2) The child fatality review team;
(3) Child abuse citizen review panels;
(4) Multidisciplinary investigative and treatment teams; or
(5) A grand jury, circuit court or family law master, upon a
finding that information in the records is necessary for the
determination of an issue before the grand jury, circuit court or
family law master.
(d) In the event of a child fatality or near fatality due to
child abuse and neglect, information relating to such the fatality or near fatality shall be made public by the department of health
and human resources and to the entities described in subsection (c)
of this section, all under the circumstances described in that
subsection: Provided, That information released by the department
of health and human resources pursuant to this subsection shall may
not include the identity of a person reporting or making a complaint
of child abuse or neglect. For purposes of this subsection, "near
fatality" means any medical condition of the child which is
certified by the attending physician to be life-threatening.
(e) Except in juvenile proceedings which are transferred to
criminal proceedings, law-enforcement records and files concerning
a child or juvenile shall be kept separate from the records and
files of adults and not included within the court files.
Law-enforcement records and files concerning a child or juvenile
shall only be open to inspection pursuant to the provisions of
sections seventeen and eighteen, article five of this chapter.
(f) Any person who willfully violates the provisions of this
section is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not more than one thousand dollars, or confined in
the county or regional jail for not more than six months, or be both
fined and confined. A person convicted of violating the provisions
of this section shall also be liable for damages in the amount of
three hundred dollars or actual damages, whichever is greater.
(g) Notwithstanding the provisions of this section, or any other provision of this code to the contrary, the name and identity
of any juvenile adjudicated or convicted of a violent or felonious
crime shall be made available to the public.
§49-7-30. Certificate of need not required.
(a) A certificate of need, as provided for in article two-d,
chapter sixteen of this code, is not required by an entity proposing
behavioral health care facilities or behavioral health care services
for children who are placed out of their home, or who are at
imminent risk of being placed out of their home, if a summary review
is performed in accordance with the provisions of this section.
(b) A summary review of proposed health care facilities or
health care services for children who are placed out of their home,
or who are at imminent risk of being placed out of their home, is
initiated when the proposal is recommended to the health care cost
review authority by the secretary of the department of health, and
human resources and the secretary has made the following findings:
(1) That the proposed facility or service is consistent with
the state health plan;
(2) That the proposed facility or service is consistent with
the department's programmatic and fiscal plan for behavioral health
services for children with mental health and addiction disorders;
(3) That the proposed facility or service contributes to
providing services that are child and family driven, with priority
given to keeping children in their own homes;
(4) That the proposed facility or service will contribute to
reducing the number of child placements in out-of-state facilities
by making placements available in in-state facilities;
(5) That the proposed facility or service contributes to
reducing the number of child placements in in-state or out-of-state
facilities by returning children to their families, placing them in
foster care programs, or making available school-based and out-
patient services; and
(6) If applicable, that the proposed services will be
community-based, locally accessible, and provided in an appropriate
setting consistent with the unique needs and potential of each child
and his or her family.
(c) The secretary's findings required by subsection (b) of this
section shall be filed with the secretary's recommendation and
appropriate documentation. If the secretary's findings are
supported by the accompanying documentation, the proposal shall does
not require a certificate of need.
(d) Any entity that does not qualify for summary review shall
be is subject to certificate of need review.
NOTE: The purpose of this bill is to divide the Department of
Health and Human Resources into two departments, the Department of
Health and the Department of Human Resources.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§5F-2-7 and §48-1-220a are new; therefore, strike-throughs and
underscoring have been omitted.