COMMITTEE SUBSTITUTE
for
H. B. 4139
(By Delegates Morgan, Stephens, Swartzmiller,
Givens, Staggers, Hartman, Ross and Butcher)
[Originating in the Committee on Government Organization]
(January 26, 2010)
A BILL to repeal §30-1-15 of the Code of West Virginia, 1931, as
amended; and to amend and reenact §30-1-2a, §30-1-5, §30-1-6,
§30-1-8, §30-1-11 and §30-1-14 of said code; and to amend said
code by adding thereto a new section, designated §30-1-19, all
relating to professional licensing boards; repealing
antiquated ineffective provisions; revising requirements for
specific subject matter at orientation sessions; clarifying
who may call a board meeting; establishing quorums; reporting
violations; clarifying the issuance of notices to cease and
desist; requiring boards to maintain a business office open to
the public; authorizing boards to propose fees notwithstanding
specific fees established in code; notifying licensees of
proposal of fees in legislative rules; authorizing boards to
levy fines; hiring administrative law judges; clarifying law
governing hearings and administrative hearings; requiring
board members to adhere to ethical standards for appointed
officials; permitting boards to establish a process for
modifying or waiving continuing education requirements or renewal fees for licensees in active duty military service;
and requiring regulatory board reviews.
Be it enacted by the Legislature of West Virginia:
That §30-1-15 of the Code of West Virginia, 1931, as amended,
be repealed; that §30-1-2a, §30-1-5, §30-1-6, §30-1-8, §30-1-11 and
§30-1-14 of said code be amended and reenacted; and that said code
be amended by adding thereto a new section, designated §30-1-19,
all to read as follows:
ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO ALL STATE BOARDS OF
EXAMINATION OR REGISTRATION REFERRED TO IN CHAPTER.
§30-1-2a. Required orientation session.
(a) After Between April 1 and not later than the first day of
December 31 of each year, the Auditor shall provide at least one
orientation session on relevant state law and rules governing state
boards. and commissions All state agencies shall cooperate with
and assist in providing the orientation session if the Auditor
requests.
(b) After the effective date of this section, All chairs or
chief financial officers of state boards and commissions newly
created by the Legislature shall attend an orientation session
designed to inform the state boards and commissions of the duties
and requirements imposed on state boards and commissions by state
law and rules The chair or chief financial officer of the newly
created board or commission shall attend an orientation session at
the earliest possible date following the creation of the board. or commission
(c) The orientation session shall include a minimum of thirty
minutes of instructional time dedicated to the statutory duty of
boards to investigate and resolve complaints, including procedures
for investigations, administrative hearings and remedies, due
process protections, and the duty to provide public access to
records of the disposition of complaints, as set forth in section
five of this article.
(d) (c) Topics for the orientation session may include, but
are not limited to, the statutory duty of boards to investigate and
resolve complaints, including procedures for investigations,
administrative hearings and remedies, and the duty to provide
public access to records of the disposition of complaints; the
official conduct of members, state budgeting and financial
procedures, purchasing requirements, open meetings requirements,
ethics, rule-making procedures, records management, annual reports
and any other topics the Auditor determines to be essential in the
fulfillment of the duties of the members of state boards and
commissions are necessary.
(e) (d) The orientation session shall be is open to any member
of new or existing boards and commissions and each board or
commission may approve expense reimbursement for the attendance of
one or more of its members. The chair or chief financial officer
of each existing board or commission shall attend an orientation
session within two years following the effective date of this
section.
(f) (e) No later than December 31 of each year, the Auditor
shall provide to the chairs of the Joint Standing Committee on
Government Operations Organization a list of the names of board or
commission members attending, together with the names of the boards
and commissions represented, and the orientation session or
sessions offered by the Auditor during the previous year.
(g) (f) The Auditor may charge a registration fee for the
orientation session to cover the cost of providing the orientation
session. The fee may be paid from funds available to a board. or
commission
(h) (g) Notwithstanding the member's normal rate of
compensation for serving on a board, a member attending the
orientation session may be reimbursed for necessary and actual
expenses, as long as the member attends the complete orientation
session.
(i) (h) Ex officio members who are elected or appointed state
officers or employees, and members of boards or commissions that
have purely advisory functions with respect to a department or
agency of the state, are exempt from the requirements of this
section.
§30-1-5. Meetings; quorum; investigatory powers; duties.
(a) Every Each board referred to in this chapter shall hold at
least one meeting each year, at such time and place as it may
prescribe by rule, for the examination of applicants who desire to
practice their respective professions or occupations in this state
and to transact any other business which may legally come before it. The board may hold additional meetings as may be necessary,
which shall be called by the chair secretary at the direction of
the president or upon the written request of any three a majority
of the board members. A simple majority of the members of the
constituent membership serving on the board at a given time
constitutes a quorum for the transaction of its business.
(b) The Each board is authorized to may compel the attendance
of witnesses, to issue subpoenas and subpoenas duces tecum, to
conduct investigations, and hire an investigator and to take
testimony and other evidence concerning any matter within its
jurisdiction. The president chair and secretary of the board are
authorized to may administer oaths for these purposes.
(c) Every Each board referred to in this chapter has a duty to
shall investigate and resolve complaints which it receives and
shall, within six months of the complaint being filed, send a
status report to the party filing the complaint by certified mail
with a signed return receipt and within one year of the status
report's return receipt date issue a final ruling, unless the party
filing the complaint and the board agree in writing to extend the
time for the final ruling.
(d) Every Each board shall maintain a business office open to
the public and shall provide public access to the record of its
public records, including the disposition of the complaints which
it receives in accordance with the provisions of chapter twenty-
nine-b of this code.
(e) Every Each board has a duty to report violations of individual practice acts contained in this chapter to the board by
which the individual may be licensed and shall do so in a timely
manner upon receiving notice of such violations. Every Each person
licensed or registered by a board has a duty to report to the board
which licenses or registers him or her a known or observed
violation of the practice act or the board's rules by any other
person licensed or registered by the same board and shall do so in
a timely manner. Law-enforcement agencies or their personnel and
courts shall report in a timely manner within ten days to the
appropriate board any violations of individual practice acts by any
individual. Any person who reports or provides information in good
faith is not subject to civil damages.
(e) (f) Notwithstanding any other provisions of this chapter,
whenever if a board referred to in this chapter obtains information
that a person subject to its authority has engaged in, is engaging
in or is about to engage in any act which constitutes or will
constitute a violation of the provisions of this chapter which are
administered and enforced by that board, it may apply to the
circuit court for an order enjoining the act, or issue a notice to
the person to cease and desist in engaging in the act: Provided,
That the notice may be enforced only by an order of the circuit
court. Upon a showing that the person has engaged, is engaging or
is about to engage in any such act, the court shall order an
injunction, restraining order or other order as the court may deem
considers appropriate.
§30-1-6. Application for license or registration; examination fee; prohibiting discrimination.
(a) Every Each applicant for license or registration an
authorization to practice under the provisions of this chapter
shall apply for the license or registration in writing to the
proper board and shall transmit with his or her application an
examination fee which the board is authorized to charge for an
examination or investigation into the applicant's qualifications to
practice the authorized fees.
(b) Each board referred to in this chapter is authorized to
may establish by rule a deadline for application for examination.
which shall be no less than ten nor more than ninety days prior to
the date of the examination
(c) Boards Notwithstanding specific fees established in the
articles which govern the licensing boards in this chapter, each
board may set fees by legislative rule fees relating to the
licensing or registering of individuals, which shall be sufficient
to enable the boards to effectively carry out effectively their
responsibilities of licensure or registration of the authorization
to practice and discipline of the individuals subject to their
authority. Provided, That when any When a board proposes to
promulgate a rule regarding fees, for licensing or registration,
that the board shall notify its membership of the proposed rule by:
(1) Mailing a copy of the proposed rule to the membership its
licensees at the time that the proposed rule is filed with the
Secretary of State; for publication in the state register in
accordance with section five, article three, chapter twenty-nine-a of this code. or
(2) Posting the proposed rule on its website and notifying its
licensees of the website posting, at least thirty days before the
proposed rule is filed with the Secretary of State, by:
(A) Mailing a postcard to its licensees;
(B) Emailing a notice to its licensees who have an email
address on file with the board; or
(C) Placing a notice in its newsletter.
(d) In addition to any other information required, the
applicant's social security number shall be recorded on the
application: Provided, That the board will redact the social
security numbers on any copies provided to the public.
(e) No board may discriminate against any applicant because of
political or religious opinion or affiliation, marital status,
race, color, gender, creed, age, national origin, disability or
other protected group status.
(f) Any A board may deny the application for licensure or
registration an authorization to practice of an applicant whose
license or registration authorization to practice in any other
state, territory, jurisdiction or foreign nation has been revoked
by the licensing authority. thereof The application may be denied
by a board without a hearing unless the applicant requests a
hearing within thirty days of the denial. Any hearing must be
conducted pursuant to the provisions of section eight of this
article or provisions contained in the rules of the board.
§30-1-8. Denial, suspension or revocation of a license or registration; probation; proceedings; effect of
suspension or revocation;
authority to hire hearing
examiner; transcript; report; judicial review.
(a) Every Each board referred to in this chapter may suspend
or revoke the license authorization to practice of any person who
has been convicted of a felony or who has been found to have
engaged in conduct, practices or acts constituting professional
negligence or a willful departure from accepted standards of
professional conduct. Where any person has been convicted of a
felony or has been found to have engaged in such conduct, practices
or acts, every the board referred to in this chapter may enter into
consent decrees, to reprimand, to enter into probation orders, to
levy fines not to exceed one thousand dollars per day per violation
or any of these, singly or in combination. Each board may also
assess administrative costs. Any costs which are assessed shall be
placed in the special account of the board and any fine which is
levied shall be deposited in the State Treasury's General Revenue
Fund.
(b) For purposes of this section, the word "felony" means a
felony or crime punishable as a felony under the laws of this
state, any other state or the United States.
(c) Every Each board referred to in this chapter may
promulgate rules in accordance with the provisions of chapter
twenty-nine-a of this code to delineate conduct, practices or acts
which, in the judgment of the board, constitute professional negligence, a willful departure from accepted standards of
professional conduct or which may render an individual unqualified
or unfit for licensure, registration or other an authorization to
practice.
(d) Every Each board referred to in this chapter may revoke
the license or registration an authorization to practice of an
individual licensed or otherwise lawfully practicing within this
state whose license or registration authorization to practice in
any other state, territory, jurisdiction or foreign nation has been
revoked by the licensing authority. thereof
(e) Notwithstanding any other provision of law to the
contrary, no certificate, license, registration or authority
authorization to practice issued under the provisions of this
chapter may be suspended or revoked without a prior hearing before
the board or court which issued the certificate, license,
registration or authority, except:
(1) A board is authorized to may suspend or revoke a
certificate, license, registration or authority an authorization to
practice prior to a hearing if the person's continuation in
practice constitutes an immediate danger to the public; or
(2) After due diligence, If a board, after reviewing all
reasonably available relevant information, cannot locate a person
licensed authorized to practice under the provisions of this
chapter within sixty days of a complaint being filed against the
licensee person, then the board may suspend the license,
certificate, registration or authority authorization to practice of the person without holding a hearing. After due diligence, If a
board, still after reviewing all reasonably available relevant
information, cannot locate the person licensed authorized to
practice under the provisions of this chapter thirty days after the
suspension of the person's license, certificate, registration or
authority, then authorization to practice, the board may revoke the
license, certificate, registration or authority authorization to
practice of the person without holding a hearing.
(f) In all proceedings before a board or court for the
suspension or revocation of any certificate, license, registration
or authority authorization to practice issued under the provisions
of this chapter, a statement of the charges against the holder of
the certificate, license, registration or authority authorization
to practice and a notice of the time and place of hearing shall be
served upon the person as a notice is served under section one,
article two, chapter fifty-six of this code at least thirty days
prior to the hearing. and He or she may appear with witnesses and
be heard in person, by counsel, or both. The board may take oral
or written proof, for or against the accused holder of the
authorization to practice, as it may consider advisable. If upon
hearing the board finds that the charges are true, it may suspend
or revoke the certificate, license, registration or authority and
suspension or revocation shall take from the person all rights and
privileges acquired thereby authorization to practice.
(g) The board may conduct the hearing or elect to have a
hearing examiner or an administrative law judge conduct the hearing. If the hearing is conducted by a hearing examiner or an
administrative law judge:
(1) The hearing examiner or administrative law judge shall be
licensed to practice law in this state, and shall conform to the
Code of Conduct for Administrative Law Judges as set forth by the
Ethics Commission in legislative rule;
(2) At the conclusion of a hearing, the hearing examiner or
administrative law judge shall prepare a proposed written order
containing recommended findings of fact and conclusions of law, and
may contain recommended disciplinary sanctions if the board so
directs;
(3) The board may accept, reject, modify or amend the
recommendations of the hearing examiner or administrative law
judge; and
(4) If the board rejects, modifies or amends the
recommendations, the board shall state in the order a reasoned,
articulate justification based on the record for the rejection,
modification or amendment.
(h) Pursuant to the provisions of section one, article five,
chapter twenty-nine-a of this code, informal disposition may also
be made by the board of any contested case by stipulation, agreed
settlement, consent order or default. Further, The board may
suspend its decision and place a licensee found by the board to be
in violation of the applicable practice act or rules of the board
on probation.
(h) (i) Any person denied a license, certificate, registration or authority an authorization to practice who believes the denial
was in violation of this article or the article under which the
license, certificate, registration or authority licensee is
authorized shall be entitled to a hearing on the action. denying
the license, certificate, registration or authority Hearings under
this subsection are in accordance with the provisions for hearings
which are set forth in this section.
(i) (j) A stenographic report of each proceeding on the
denial, suspension or revocation of a certificate, license,
registration or authority shall be made at the expense of the board
and a transcript of the hearing retained in its files. The board
shall make a written report of its findings, which shall constitute
part of the record.
(j) (k) All hearings and administrative proceedings under the
provisions of this section will be held in accordance with the
provisions of article five, chapter twenty-nine-a of this code, and
are subject to review by the Supreme Court of Appeals.
(k) (l) On or before the first day of July, two thousand one,
every Each board referred to in this chapter shall adopt procedural
rules in accordance with the provisions of article three, chapter
twenty-nine-a of this code, which shall specify a procedure for the
investigation and resolution of all complaints against persons
licensed under this chapter. The proposed legislative rules
relating only to complaint procedures or contested case hearing
procedures required by the prior enactment of this subsection shall
be redesignated as procedural rules in accordance with the provisions of article three, chapter twenty-nine-a of this code.
Each board shall file the procedural rules required by this
subsection by the thirty-first day of January, two thousand one.
The public hearing or public comment period conducted for the
proposed legislative rules shall serve as the public hearing or
public comment period required by section five, article three,
chapter twenty-nine-a of this code.
§30-1-11. Compensation of members; expenses;
adherence to ethical
standards.
(a) Each member of every board in this chapter is entitled to
receive compensation for attending official meetings or engaging in
official duties not to exceed the amount in the same amount as is
paid to members of the Legislature for their interim duties as
recommended by the Citizens Legislative Compensation Commission and
authorized by law. A board member may not receive compensation for
travel days that are not on the same day as the official meeting or
engaging in official duties.
(b) The limitations contained in this section do not apply if
they conflict with provisions of this chapter relating to a
particular board and enacted after January 1, 1995.
(c) A board may reimburse actual and necessary expenses
incurred for each day or portion of a day engaged in the discharge
of official duties in a manner consistent with guidelines of the
Travel Management Office of the Department of Administration.
(d) No member of any board in this chapter may receive
compensation as an employee of the board.
(e) Each member of every board in this chapter shall adhere to
the ethical standards for appointed officials as set forth in
section five, article two, chapter six-b of this code.
§30-1-14. Remission of certain fees Modifying or waiving continuing
education requirements or renewal fees for persons in
active duty military service.
Every board of examination or registration referred to in this
chapter is hereby authorized, under such rules and regulations as
may be adopted by each board, to remit all annual license or annual
registration fees required to be paid by any licensee or registrant
under its supervision during such time as such licensee or
registrant is serving with the Armed Forces of the United States of
America, and to retain the name of such licensee or registrant in
good standing on the roster of said board during said time.
Each board in this chapter may establish and implement
processes for modifying or waiving continuing education
requirements or renewal fees for the renewal of an authorization to
practice for the period of time during which a person regulated by
the board is engaged in active duty military service.
§30-1-19. Regulatory board review.
Each board is subject to a regulatory board review pursuant to
the provisions of article ten, chapter four of this code.